Saul Cornell Comments on the 14th Amendment and Originalist Method
Michael Ramsey
Saul Cornell (Fordham History) emails in response to this post:
Interesting recent posts on the 14th Amendment. I think you and Dave Kopel [ed: see here]are misreading the evidence and this highlights a problem with originalist method. Kopel's evidence shows that there was a disagreement over the original meaning among courts which raises the basic question of how we choose among the range of the different possible meanings from any historical moment. Your post also raises questions about what we mean by public meaning. Reconstructing what judges thought is not evidence of original public meaning, but evidence of judicial understanding at a particular historical moment. Judicial method, which obviously is not static, generally follows a set of formal rules. Reading a text in this fashion is actually quite distinct from original public meaning understood as ordinary meaning-- a point I stress in my recent article [ed.: see here; this is an important recent article in the Yale Journal of Law and Humanities]. Public meaning generally eschews the technical methods of the law. How do we choose among these methods and what are the rules for a given method at particular moment in time? This brings us back to intellectual history. Originalists don't have a rigorous method to deal with these issues. Until they develop a real historical method originalists will continue to talk past one another and anyone playing the originalist game will be able to cherry pick evidence to produce the result they find most congenial by simply claiming it was part of the original meaning or what a fully informed reader would have taken that meaning to be during the Founding era or during Reconstruction.
UPDATE: Two quick clarifications -- (1) I did not mean to endorse David Kopel's argument, apart from saying that it raised legitimate questions. I don't have definite views about the original meaning of any part of the 14th Amendment other than the birthright citizenship issue. (2) I did not mean to endorse the use of post-ratification judicial decisions as a principal authority on original meaning. Judges are not neutral interpreters; they bring their own personal and political contexts with them. What they say is some evidence of how legal language is understood, nothing more. For example, in the birthright citizenship debate, I think it's notable but hardly decisive that the Supreme Court's majority in the Slaughterhouse Cases said that the 14th Amendment did not convey citizenship on children of aliens. Again, all I meant to say regarding bans on cross-racial marriage is that Professor Kopel raises some doubts about their constitutionality under the original meaning, and I think the judicial opinions he cites do that.
On the broader point, I think Professor Cornell is right to ask originalists to clarify what they are looking for in looking for the original meaning (and that this may be difficult). We had some discussion of this point at the recent works-in-progress conference in connection with Professor Somin's paper on political ignorance, which expressed doubt that there was a common understanding among ordinary people of the time regarding much constitutional meaning. One response was that the Constitution as a legal document should be given a meaning consistent with ordinary legal usage of the time, not necessarily ordinary public usage (just as a scientific writing would be given a meaning consistent with ordinary scientific usage even if that meaning was not popularly understood). Another response was that the views of legal elites could be used as a proxy for common understanding, or at least what the common understanding would be if the common person educated himself about the topic. I don't think either of these points would satisfy Professor Cornell though.
I might suggest as well that I'm not sure the question has practical force in at least some situations. Consider presidential war powers, which I've studied a fair amount. My view is that the educated understanding of the declare war clause was that the President could not initiate hostilities without congressional approval. Was there a common understanding among ordinary people to the contrary? I don't know (and I'm not sure how we would find out -- the reality is that the educated understanding is mostly what has survived). I'm surely in favor of additional research on the subject. But I'm skeptical that there is such contrary evidence. I think it pretty unlikely that the legal understanding diverged from the common understanding on this point (not least because, if there was a common understanding supporting presidential power, legal elites who supported presidential power, such as Hamilton, likely would have appealed to it). I'm curious how Professor Cornell thinks his critique plays out in the war powers context.
