Ilya Somin on Elitist and Populist Versions of Originalism
Ilya Somin follows up on our prior exchange with this long and interesting post: Elitist and Populist Versions of Originalism. From the introduction:
My recent exchange with Michael Ramsey about originalism and laws banning interracial marriage turned on the point that the original meaning of the Fourteenth Amendment more clearly bans such laws if it is interpreted in accordance with the understanding held by legal elites at the time of enactment than those held by the general public. This highlights a more general divergence between different versions of originalism: some originalists adopt elitist versions of the theory, which privilege the understanding of the Constitution held by a small group of framers or legal experts, while others are more populist. This divide is often ignored, even by constitutional theorists. But it is an important issue nonetheless. There are serious arguments for both elitist and populist versions of originalism. And the difference between the two approaches has important implications for constitutional interpretation.
I agree with much of what he says. Here are a few further thoughts:
1. I think the most common version of modern public meaning originalism embraces something like the view Professor Somin rightly associates with Gary Lawson and Guy Seidman: a search for the meaning of the constitutional text to a hypothetical “reasonable person,” who is “conversant with legal traditions and conventions of the time.” This is not really "elitist," because it reaches (one hopes) the conclusion that most people of the time would reach if they investigated the words' legal meanings. It's true that the shared understandings of legal elites is good (though not necessarily conclusive) evidence of such a meaning; but evidence also comes from dictionary definitions, the structure of the text, the previous use of the words and phrases in legal and political discourse, and other background assumptions about legal and constitutional structure and tradition.
2. A competing view might be that the "reasonable observer" should not be "conversant with legal traditions and conventions of the time" -- what Professor Somin would call the "populist" version. One would look only to the plain meaning of the text, without considering its legal context. Perhaps a useful example is the ex post facto clause, which to someone not knowledgeable of the legal context might have encompassed any retrospective law but upon investigation of the legal context appears to have meant only retrospective criminal laws. So perhaps a better way to think about the divide is not between elitist and populist meanings, but between legal and non-legal meanings.
3. Professor Somin says that "many originalists simply rely on the understanding of the general public at the time of ratification, without resorting to hypothetical constructs, or limiting the inquiry to those who might be reasonable." I'm not sure this is true, and if true I'm unclear how these originalists hope to find such an understanding -- we simply don't have access to what the "general public at the time of ratification" thought about particular constitutional phrases. (To continue the example, how would one determine what the general public in 1788-89 thought "ex post facto laws" meant?) For the most part, we have to use a "reasonable observer" as a proxy for the public consensus. To the extent we have information about public understandings, that's useful evidence, but in general I think we at best have evidence about particular people's understandings, not the public as a whole.
4. Professor Somin suggests that the more populist versions of originalism may align better with originalism's theoretical justifications:
But there is also a strong case for the populist approach. Unlike a medical or engineering text, the Constitution derives its legitimacy (at least on many theories) from the approval of We the People. Indeed, many originalists defend originalism on the basis that the original meaning is the one that was enacted by democratic political processes, and had the consent of the public. The meaning the public approved was that understood by the general population, not the views of a small elite of experts.
Perhaps. But the Constitution was not approved by referendum; it was approved by elected representatives -- the ratifying conventions, for the original constitution, and the state legislatures, for the amendments. True, the members of these bodies were not all members of the legal elite -- but some of them were, and their debates were focused on the legal meaning of the text in a way that the public at large was not. The conventions and state legislatures may have been influenced by the results their constituents wanted, but they were probably not so concerned about how their constituents understood particular phrases.
Again consider the ex post facto clause: the ratifiers may have cared whether their constituents thought all retrospective laws should be banned, but in considering the text, their concern would have been the likely legal meaning of the phrase, not what their constituents thought the phrase meant. So I would think that versions of originalism based on the understandings of the ratifiers (that is, of the conventions and the legislatures) would lean more to the legal rather than the populist meaning.