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12/03/2018

Debating Original Methods Originalism
Mike Rappaport

Recently, Jack Balkin wrote a critique of Original Methods Originalism, the interpretive approach to original meaning that John McGinnis and I have developed. His approach was based on the new book by Jonathan Gienapp, The Second Creation, which argues that it took some time after the Constitution’s ratification for the interpretive rules governing the Constitution to be established.

Jack wrote the following:

Gienapp's book might have important critical lessons, however, for original methods originalists. Original methods originalism argues that we should use the same interpretive methods that people used at the time of adoption, because those methods are part of the "law of interpretation" that applies to constitutions, or, more controversially, because these methods are part of the original meaning of the constitutional text and are incorporated by reference.

Original methods originalism is based on the assumption that there was a general consensus among well-trained lawyers about how to interpret the Constitution at the time it was adopted. This assumption, Gienapp explains, is not grounded in historical fact. Like many other historians of the founding, Gienapp points out that there was little agreement about what kind of legal text the Constitution was, and so there was little agreement about which set of interpretative principles applied to it.

This critique by Balkin was based on a false premise: original methods does not assume a general consensus about how to interpret the Constitution at the time it was adopted. Jack was kind enough to allow us to write a response on his blog, Balkinization. We wrote:

But we have never claimed that there was such a general consensus. And, in fact, we have disclaimed relying on that consensus. In short: original methods works both interpretively and normatively whether or not there was a consensus on interpretive methods. 

We briefly documented how our earlier writings had never asserted a consensus and in fact had recognized that there were disagreements about the interpretive rules.

We then explained how “original methods works as both an interpretive approach and a normative theory” even if there was disagreement about the original interpretive rules:

The interpretive approach works most simply if there was a consensus as to the interpretive rules. And to the extent that there was a consensus as to some of the interpretive rules – something we do believe existed – then of course one would follow those interpretive rules.

But the interpretive theory still works even if there was a disagreement about the correct interpretive rules. In a recently delivered paper, Unifying Original Intent and Original Public Meaning, we argue that one should apply the interpretive rules that people at the time would have employed. If there was disagreement as to those interpretive rules, one should look to the methods that people at the time would have used to determine what the correct interpretive rules were.

We then added an important point:

Where there was disagreement about which interpretive rule to apply, they would choose the interpretive rule that was better supported than the alternative rule. Even if the support for two opposing interpretive rules were relatively equal, they would choose the rule that had greater support – what we call the 51/49 rule – a rule we have previously applied to resolve ambiguities in the text.

We concluded the post with a discussion of the normative theory underlying original methods:

In our view, the supermajoritarian procedure for enacting the Constitution made it likely that the document was a good one. And to enforce the meaning of that document, we should employ the interpretive rules that people at the time would have employed.  Otherwise, we would not secure the meaning that they enacted.

While the normative argument works more simply if there was no disagreement about the interpretive rules, it still works if there was disagreement. The state ratification conventions would have evaluated the document based on a judgment as to what its meaning was. If there was uncertainty about what the meaning was or the interpretive rules that would be applied to it, then that would probably reduce the net benefits of the document they were evaluating. Ultimately, the ratification conventions would have to decide whether the expected net benefits of the document outweighed the uncertainty that they had about its meaning.

In some cases, the conventions decided that this uncertainty needed to be clarified, as many ratifiers did when they insisted on a Bill of Rights as a condition of their supporting ratification. But in all cases, a vote for ratification meant that the ratifier believed the expected net benefits of the document outweighed its uncertainty.