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Michael Dorf on Originalism in Gamble v. United States
Michael Ramsey

At Dorf on Law, Michael Dorf highlights a small but interesting issue of originalist methodology in the Supreme Court's recent opinion in Gamble v. United States (the double jeopardy case).  He writes: 

Justice Alito [in the majority opinion] notes that the petitioner's argument based on original understanding relies extensively on a single 1677 case involving a fellow named Hutchinson but that there is no surviving report of the case and that much of what we do know about the case suggests that it and subsequent cases cut in favor of the separate-sovereigns principle. He then takes note of an argument made by the petitioner. Justice Alito writes for the Court:

[Petitioner argues that] [w]hatever the English courts actually did prior to adoption of the Fifth Amendment, by that time the early English cases were widely thought to support his view. This is a curious argument indeed. It would have us hold that the Fifth Amendment codified a common-law right that existed in legend, not case law.

But why is this argument curious as a matter of original public meaning? Suppose you are reading a journal of the proceedings of an astronomical society from 1791 and you come across a calculation of the orbit of "the outermost planet in the solar system." You wonder whether the astronomers were discussing Neptune or Pluto, but find yourself puzzled, because the calculations are way off for either one. Then it hits you. In 1791, the most distant known planet was Uranus, which was discovered ten years earlier. Neptune would not be discovered until 1846. The most sensible reading of "outermost planet in the solar system" in this context is Uranus.

That's not a perfect analogy, of course, but it underscores a basic point that a reconstruction of original public meaning properly takes account of what the public thought, not necessarily of what was true.

I partly agree and partly don't.  I agree as to Gamble.  The question is what the enactors of the Fifth Amendment understood the double jeopardy right to be.  It's possible that they understood the Amendment to prohibit double jeopardy as defined in English common law, however it was defined.  But it's more likely that they understood the Amendment to prohibit double jeopardy -- at least as to its major contours -- as they (the enactors) defined it, which in turn was likely their understanding (right or wrong) of English common law.  If there was not common understanding of the double jeopardy right in America at the time of enactment, then I would think the actual rules of English common law should be decisive.  But if it could be established that there was a consensus understanding of double jeopardy in America a the time of enactment, I think that should be close to conclusive as to the Amendment's meaning, and not at all undermined by a showing that Americans misunderstood English law.  (This argument seems particularly significant in the free speech area, where it may well be that the enactors adopted "a common-law right that existed in legend, not case law."

But I don't agree with Professor Dorf's planetary analogy.  Suppose a law is enacted that no one may travel "beyond the outermost planet in the solar system."  At the time of enactment, Planet X is the most distant known planet in the solar system.  Later, a more-distant planet in the solar system, Planet Y, is discovered.  Does the law now prohibit travel beyond Planet X, or beyond Planet Y?  I say, at least presumptively, only beyond Planet Y.  Context indicates that the enactors were not thinking of a specific planet, but rather of the outer bounds of the solar system, wherever that might be.  Indeed, if the law had instead said no one may travel "beyond the outer bounds of the solar system," it seems obvious that that means beyond the outer bounds of the solar system as we understand it from time to time, not the outer bounds of the solar system as known at the time of enactment.  The non-specific reference to the outermost planet has the same character, and should be interpreted the same way.

Nonetheless, I concede this is often a difficult methodological issue for originalism, because it seems clear that sometimes it should go one way and sometimes the other based on context, and there will often be cases in the middle.  Thus I agree that Justice Alito was wrong to dismiss the petitioner's argument out of hand (though it seems likely he was right to conclude that the petitioner had not established a common understanding as of the time of enactment).