« Originalism and Birthright Citizenship, Again
Michael Ramsey
| Main | Our Supermajoritarian Constitution – Part II: The Republican Purpose of the Supermajority Rules of the Constitution
Mike Rappaport
»

08/25/2015

A Response to Stephen Griffin on Original Public Meaning and Executive Power
Michael Ramsey

In a post I noted earlier, Stephen Griffin argues that the debate over executive power shows the major shortcomings original public meaning (OPM) has as a theory of constitutional interpretation.  As someone who has used an original public meaning approach to decipher the meaning of executive power, I feel a response is appropriate.  

I'll start by saying that Professor Griffin is an outstanding scholar whose book Long Wars and the Constitution (which coincidentally I'm now reading in connection with a different project) is an enormous contribution; I'm sure his new book is equally important and insightful.  Also he has said some generous things about my scholarship, both in his recent post and elsewhere, which I appreciate.  Nonetheless, I think his current criticism is misguided on two principal grounds: that he misunderstands original public meaning, and that he misunderstands the claims it makes about executive power.

As to the first point, Professor Griffin writes:  "I am arguing rather that the OPM approach has a very specific take on what counts as relevant historical evidence that happens to be unsuited to the task of finding constitutional meaning amid the rapidly changing circumstances of the 1780s."  I think this is incorrect.  OPM, as he calls it, is not principally a theory of what "counts as relevant historical evidence."  Instead, it is a theory of what the interpreter is trying to accomplish.  Its objective is to uncover (to the extent possible) the meaning of the words in the Constitution's text.  It rejects the competing idea that the objective should be to discover what individual framers (or the framers collectively) thought about particular issues (or would have thought, had they thought about them).

This has some methodological implications for what counts as evidence, but not so restrictively as Professor Griffin seems to think.  What OPM principally rejects as evidence is speculation about what "the framers would have thought" based on broad statements of the framers' goals or principles taken at a high level of generality.  The question, as OPM understands it, is not what the framers would have thought, but the meaning of the words they wrote.  As an example, consider the debate over birthright citizenship, which I mentioned yesterday.  For an OPM approach, the question is not what the framers of the Fourteenth Amendment would have thought about children of illegal aliens, but rather the historical meaning of the relevant phrase "subject to the jurisdiction" of the United States.

But with the focus on the words, all sorts of historical evidence of meaning is admissible, including categories Professor Griffin seems to think OPM rejects.  To take the example of executive power, I agree with Professor Griffin that OPM looks closely at the way that phrase was used prior to the Constitution (including in English law, which was an important source of meaning for the framers on many things).  But OPM (at least the way I, and I think many others, would do it) would look first at the text and structure of the Constitution itself, including the relationship between the executive power clause and other closely related clauses; it would also look to the drafting and ratifying debates for evidence of what the drafters and ratifiers thought the relevant phrase meant and how it interacted with other related provisions; and it would look to post-ratification history to see how the generation that first put the Constitution into practice seemed to understand the relevant words in the text.  (To see this approach, take a look at my Yale Law Journal article with Sai Prakash on presidential foreign affairs power, or my articles on presidential war power; also I have a somewhat more developed methodological account here).

Among OPM scholars there may be some significant difference in emphasis among these sources.   But I don't think mainstream OPM analysis would reject any of them.  The main common theme is to understand the meaning of the words -- anything that helps should be welcomed.  Indeed, OPM scholars may even welcome broad generalities about what the framers were trying to accomplish, as long as they can be tied to resolution of specific debates about textual meaning.

As a result, I think Professor Griffin is writing about a caricature of OPM.  Some scholars may indeed have idiosyncratic views about the relevance of particular types of evidence, and that can be a basis for criticizing them individually, but it cannot be a basis for criticizing OPM in general.

With this said, though, I think Professor Griffin is right to this extent: OPM (or at least my version of it) does focus, more than other approaches, on the way words written into the Constitution were used prior to the drafting.  It's not an exclusive focus, but it is a very important element.  This comes out most immediately in OPM's attention to dictionary definitions, but dictionaries are only part of it (an overrated part, in my view).  The idea is that when the framers chose certain words, and not others, for the Constitution, they drew upon an existing linguistic background that they shared and knew their readers would share; similarly, when people at the time read the words that the framers chose, they read them in light of that existing linguistic background.  This is in the nature of the Constitution as a communicative enterprise.

The best evidence (in my view) of this linguistic background is the way words were used before the drafting (before they were invested with constitutional consequences).  And I do agree with Professor Griffin's comment that OPM theorists think pre-drafting meaning establishes something of a presumption: if the relevant phrase generally meant X at time A, and there is no evidence of a change in meaning up to time B, I think that's pretty good evidence that the phrase generally meant X at time B.  But the presumption is surely rebuttable, including by all the other types of evidence mentioned above.

It may be that Professor Griffin is best read not as objecting to OPM methodology in general, but rather only to its attention to pre-drafting meaning (perhaps especially pre-drafting meaning in English law).  So in my next post I will directly defend the use of pre-drafting meaning to define executive power.