« Craig Lerner: Originalism and the Common Law Infancy Defense
Michael Ramsey
| Main | Mitchell Gordon: Continuity, Discontinuity, and the Rights Retained by the People
Michael Ramsey »

07/07/2018

Michael Stokes Paulsen on Originalism and Impeachment
Michael Ramsey

At Liberty Law Blog, Michael Stokes Paulsen: Constitutional Interpretation and the Impeachment Power.  To begin, a primer on original meaning originalism:

My methodology is one that is best described as original public meaning textualism: What is the objective meaning that the words and phrases of the document would have had to reasonable, and reasonably informed, speakers and readers of the English language, at the time of their adoption as part of the Constitution? I have described this methodology (which is not at all unique to me) at great length in other places. (Consider the articles herehere, and here, if interested.)

Briefly stated, the methodology is one that focuses on the (theoretical) objective meaning of the words of an authoritative written text. It is not the subjective “intentions,” or “understanding,” or “expectations” of any of the text’s (collective) authors or adopters that is itself authoritative – though such information might well supply valuable relevant evidence of the meaning of the words of the text. The search is for the meaning of the words and phrases that the framers and ratifiers of the Constitution wrote, and adopted, as part of the Constitution. That meaning is (theoretically) the objective meaning of the language thus written. Put colloquially:  It is not what the framers “had in mind” that counts, in the end. It is what they wrote down in words. The two things are often related, but they are distinct.

The methodology focuses on the original meaning of the words and phrases. This is essential to guard against creeping (or lurching) linguistic anachronism or, even worse, pure subjectivity. The Constitution’s provisions were adopted at particular points in time and reflected the meanings the words of those provisions had at that time and in that social and political context. To treat those words as legally authoritative means to accord them the meaning (or range of meaning) they had at the time they were adopted as authoritative.  That is part and parcel of written constitutionalism generally. Giving the Constitution its original meaning as an authoritative written text also requires that the words and phrases of the Constitution be understood in accordance with any backdrop understandings that would have come with such terms, at the time and in the social and political context in which they were adopted. If a word or phrase functioned as a specific legal or political term of art, and was known to function as such, then its legal meaning is the one that corresponds to that term-of-art meaning at the time, which is not necessarily its modern “literal” meaning.

This is a good summary of what I take to be the conventional description of modern originalism, which I sometimes call "Scalian originalism" because it's associated with then-Judge Scalia's famous 1986 speech and with his subsequent practice as Justice.  Because there seems to be recurring confusing on this point, I'll reiterate that this is NOT the same as "New Originalism," although it is indeed newer than the older form of originalism that focused on framers' intent.  New Originalism adds some additional points most notably including the idea of construction, which are not necessarily accepted by original meaning originalists.

Now on impeachment: 

Readers of the Constitution today can be misled badly by the general modern sense of the words “Crimes” and “Misdemeanors,” which might lead some to embrace anachronistic readings of the impeachment standard as limited to literal criminal-law offenses: felonies and misdemeanors. Under this reading method, the reader has to figure out to do with the word “high” as a supposed modifier and qualifier of the words “Crimes” and “Misdemeanors,” rather than as part of a composite term-of-art. The effort usually involves imputing some modern meaning to the word “high.”

But the word “crime” had a broader, more general sense at the time the Constitution was written than it does today, frequently being used to describe any serious wrongful act, whether technically illegal or not. Often the term was used in a strictly moral sense.  Similarly, the word “misdemeanor,” in eighteenth-century American English, was not limited to the meaning of a criminal-law offense with a lesser degree of seriousness or punishable by less than a year of imprisonment.  Instead, “misdemeanor” bore a broader meaning closer to “misbehaving” or “misdemeaning” – as in the sense of a person not demeaning himself or herself properly. . . 

Agreed.