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09/10/2019

A Response to Professor Ramsey on the Paradox of Originalism
David Weisberg

I appreciate Prof. Michael Ramsey’s thoughts responding to my note.  My note is a glimpse of a much deeper critique of original-public-meaning originalism, which can be found here and here on SSRN.
 
Prof. Ramsey agrees “as a theoretical matter” with what I call the Paradox of Originalism:

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

He also seems to accept that ignoring the Paradox plunges the conscientious originalist into an infinite regress.  He refers to “mostly solving” the infinite regress problem; this seems to acknowledge a genuine problem.  These are two important points of agreement.

There are, however, nits to pick.  I’ll downplay smaller nits—I continue to challenge anyone to identify one word in the Constitution that had, per the definitions and etymologies in the current Oxford English Dictionary, a definition that was valid in 1788 but is no longer valid today—and go to the biggest. 

Prof. Ramsey asserts: “[O]riginalism is (or should be) based on a rebuttable presumption that the words [in the Constitution] have not changed meanings (and dictionaries can be used to confirm this).  Justice Scalia approached the project in exactly this way.” (Emphasis original, brackets added.)

I certainly agree that originalism “should be” based on that presumption—that follows from the Paradox.  But, was Scalia’s originalism based on that presumption?  I vote ‘no’, for three reasons.        

First, I cannot find in Scalia’s speeches, writings, interviews or opinions any reference to anything resembling the Paradox, or to the infinite regress it foreshadows.  Given Scalia’s decades-long interest in originalism, he surely would have noted this danger, if he had been aware of it.  I believe Scalia made no such reference because the Paradox simply never occurred to him. 

Secondly, Scalia called all the permutations of his theory ‘originalism’.  To me, it’s simply bizarre that a theory that presumes words do not have original meanings that differ from current meanings should be called ‘originalism’.  Why call it ‘originalism’, if not to indicate that original meanings probably differ from, and thus are more important than, current meanings?  If original meanings are presumed to be identical to current meanings, a better name would be ‘identicalism’ (see, my paper “Originalism is Dead…Long Live Identicalism!”).

Thirdly, here is a tiny sampling of what Scalia wrote about the underpinnings of originalism:

“[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.”  (A MATTER OF INTERPRETATION (1997), p. 38, emphasis in original.)

And this:

“[O]riginalism is an age-old idea in our jurisprudence[.]   But it applies mostly to older documents that continue in effect: Those are the ones whose operative terms are most likely to have undergone semantic shift.” (READING LAW (2012), co-authored with B.A. Garner, p. 78.)

Why posit a “Great Divide” between original and current meaning, if one presumes that the two meanings are identical

And if terms in older documents, including the Constitution, “are most likely to have undergone semantic shift,” and if “semantic shift” has any relationship whatsoever to meanings, wouldn’t the careful originalist be compelled to presume (rebuttably) that original meaning differs from current meaning, and not the opposite?  I think so.

In contrast, Prof. Ramsey thinks Scalia presumed that original meanings are identical to current meanings.  He highlights instances in Heller and Morrison where Scalia concluded that particular words had original meanings that are identical to their current meanings.  But this is unpersuasive, because a rebuttable presumption can always be rebutted. 

Prof. Ramsey observes that Scalia compared definitions from old dictionaries with definitions from new ones.  This, too, is unpersuasive.  Whichever presumption one entertains, one relies on both old and new dictionaries.  A constitutional textualist (like myself) regularly consults, albeit indirectly, old dictionaries when he or she reviews etymological entries in the O.E.D. to verify that a particular definition pre-dates the effective date of some word or phrase in the Constitution. 

In sum, I don’t believe Scalia presumed that original meanings are identical to current meanings.  I believe he presumed the opposite and never had any awareness of the Paradox. 

Prof. Ramsey correctly notes that I draw a distinction between words and phrases.  But the most important justification for that distinction is irrelevant here.  Originalists assert (correctly) that ordinarily we look for public meanings, not secret meanings.  But certain phrases (not words) in the original Constitution—specifically, those phrases concerning the institution of slavery—do have coded, secret meanings.  That fact is irrelevant to this discussion.

Prof. Ramsey cites what Justice Scalia called his “legacy opinion,” D.C. vHeller, as exemplifying how originalism should work.  For me, this is deeply ironic, because I’ve argued that Heller is both logically incoherent and also reaches the wrong result.  The incoherence is blatant.  At the beginning of the section headed “Meaning of the Operative Clause,” Justice Scalia writes: “[I]t has always been widely understood that the Second Amendment…codified a pre-existing right.” (554U.S.592)  The emphasis is all Scalia’s.  Six pages later, we find: “Does the preface fit with an operative clause that creates an individual right to keep and bear arms?  It fits perfectly[.]”  So, the right referred to in the operative clause morphs from one that pre-exists (with emphasis) the amendment, into one the amendment “creates”.  Interesting.  (How and why Heller reaches the wrong result is explained here.)

One last thought.  The advent of corpus linguistics will, I predict, provide a true test of contemporary originalism.  Corpus linguistics analyzes millions of foundation-era pages, only a tiny fraction of which come from dictionaries, with a view towards clarifying original meanings in the Constitution.  The results can be far removed from current meanings.  E.g., a recent note in this blog, to which I responded, suggested that, based on a corpus linguistics analysis, the Second Amendment protects only the right of the people to serve in a well-regulated State militia, with no direct reference to “arms” or any “right of the people to keep and bear arms”.  If one presumes that original meanings differ from current meanings, such a result might not be surprising.  Nevertheless, I think every serious student of the Constitution should ask: If that’s what the framers meant, why isn’t that what they wrote?  As the corpus linguistics movement proceeds to churn out ‘analyses’ that stray ever farther from current meanings, will today’s originalists ask that question?