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04/04/2017

More on Professor Bilder and Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Constitution’s Creation Is Compatible with Reading It as a Legal Document.  From the introduction: 

Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text.  Larry Solum has already asked her five probing questions about her understanding of originalism.

Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document.  To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do.  Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man.   She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”

The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike [Rappaport] and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.

Also, at Legal Theory Blog, Larry Solum has this lengthy response to a post  by Brian Leiter on his "five questions" post, including this point:

Why are originalists "sensitive" to what they understand to be misrepresentations by nonoriginalists scholars in public political debate?  I think that Leiter is correct that originalist scholars do react by objecting when they read nonoriginalists misrepresenting "originalism" to the general public.  I can only speak for myself about the reasons for this reaction.  In my case, I am frustrated that nonoriginalists frequently say things about originalism that no one who has read the scholarly literature would possibly assert as true of contemporary originalism.  The clearest example is the oft-repeated assertion that originalists attempt to "channel Madison" and attempt to resolve contemporary constitutional disputes by asking, "What would Madison do?"

At the Faculty Lounge, Steve Lubet has a brief post on one point in the Bilder-Solum exchange: 

Thus, referring to a theory as “trying to explain” [As Professor Bilder says of scholars of original public meaning] does not imply failure, but rather recognizes that the scholarly enterprise is continuous.  There are no definitive answers even in the hard sciences, much less in law and the social sciences.  Originalism itself has gone through changes, moving from “original intent” to “original public meaning,” as each successive iteration tries to improve on earlier conceptions.

I have never written anything that did more than try to explain an idea, and I have never read anything in scholarship that provided a conclusive answer.  As a historian, I am unconvinced that the "original public meaning" of constitutional provisions can be recaptured with the certainty claimed by Solum and Barnett, but I am open to persuasion.  Let me suggest that Bilder wrote her oped, at least in part, in the same spirit.

As a quick aside on this point, I don't know that Professors Barnett or Solum claim that the original public meaning of large numbers of constitutional provisions can be recaptured with a high degree of certainty.  On the other hand, surely the original public meaning of some constitutional provisions can be recaptured with a very high degree of certainty.  For example, we can be pretty sure that the original public meaning provided for one President, not two; that each state was entitled to two Senators regardless of population; and that Representatives were elected for two year terms.  Most originalist scholars and judges, I would guess, see the matter as something of a spectrum, with some applications of some provisions being relatively clear, others somewhat less so, still others increasingly challenging, and still others pretty opaque.  It does not seem useful to me in this debate for originalism skeptics to maintain either that originalism claims certainty about the original meaning of all provisions (because often it does not) or that certainty about the original meaning is categorically impossible (because certainty, or at least near certainty, is at least sometimes possible).

Finally, here is Randy Barnett on the exchange, at Volokh Conspiracy.