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10/31/2017

Frederick Mark Gedicks: Lawrence Solum and the Thesis of Immaculate Recovery
Michael Ramsey

Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery (DPCE [Diritto Pubblico Comparato ed Europeo] Online 31:3 (Oct. 2017), 653-60) on SSRN. Here is the abstract: 

Part of an online symposium on Professor Lawrence Solum's account of originalism, this essay criticizes Solum's implicit “thesis of immaculate recovery.” This thesis presupposes that constitutional meaning exists in the past as an object, and can be recovered in its pristine objective form, untouched by concerns of the present. The essay argues instead that the meaning produced by originalist method is neither immaculate nor even a recovery, and that present concerns are not obstacles to understanding the past, but the very ground of that understanding. It uses a classic American film, "It's a Wonderful Life," to illustrate the argument.

Without undertaking to speak for Professor Solum, I would say that this essay substantially overstates the claims of most originalist scholars and practitioners. 

(1)  Originalism does not "presuppose that constitutional meaning exists in the past as an object" in all cases.  Originalism presupposes that constitutional meaning exists in the past as an object in at least some cases.  Originalism is happy to concede that some constitutional phrases may be (as Judge Bork famously said) "inkblots" with no discoverable meaning, or (more commonly) that some constitutional phrases are fatally vague or ambiguous in their application to some circumstances (while being clear enough as applied to others).  While originalism does presuppose that at least some constitutional phrases had a fixed meaning in the past, this is not a radical presupposition.  We commonly presuppose this, as to words written in the past, whenever we discuss the historical meaning of written documents.  And, more to the point, we commonly presuppose this, as to constitutional phrases, such as the direction that there be one President elected every four years and that there be two Senators from each state.

(2) Originalism does not presuppose that "constitutional meaning .... can be recovered in its pristine objective form, untouched by concerns of the present."  To the contrary, originalism (if done right) is sensitive to the very legitimate concerns that (a) even where there was an objective meaning (that is, where "meaning exists in the past as an object"), it may be hard for us to recover that meaning due to its remoteness in time, gaps in the source material, etc.; and (b) modern concerns may influence our interpretations of the past.  Thus originalism does not contend that meaning can always be recovered in its "pristine" form; rather it contends that meaning can at least sometimes be recovered, at least on a more-likely-than-not basis.  Again, this is not a radical view of historical documents: we commonly think we can get at least a pretty good sense of their meaning despite their remoteness in time and our unavoidable biases.  And again, I think most people agree with respect to at least some constitutional phrases, such as the ones mentioned above.

The debate here isn't -- or shouldn't be -- about whether we can always find the historical meaning of constitutional phrases (of course we can't)  or whether we can sometimes find the historical meaning of constitutional phrases (of course we can).  The debate is really about how often we can find the historical meaning of constitutional phrases.  For originalism to have substantial weight, it needs to be able to claim that we can find the historical meaning of constitutional phrases a good bit of the time.  I take it that this is the proposition Professor Gedicks disputes, with a little overstatement for effect.