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09/04/2019

Thoughts in Response to David Weisberg
Michael Ramsey

This post offers a few thoughts in response to the recent post on this blog by David Weisberg.  I agree with the main points of his post, but disagree as to their implications.

His post (and other related work) argues that if the original meaning of the words in the Constitution is, because of the passage of time, different from the modern meaning, that is a serious problem for originalism that cannot be solved by resorting to founding-era dictionaries.  After all, those founding-era dictionaries are from the same time, so the original meaning of their words will also differ from the modern meaning.  And so on.  As he puts it: 

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.

I agree, as a theoretical matter.  If the original meaning of eighteenth century words routinely differed widely from the modern meaning of those same words, eighteenth century dictionaries would not be much help.  It would be like trying to translate a document from German to English using only a German dictionary.

But, he goes on to say (and again I agree), commonly the original meaning of words in the Constitution is the same as the modern meaning.  I do not agree that this is always the case.  It's easy enough to think of counterexamples: "gay" meaning happy instead of having a same-sex sexual orientation; "awful" meaning filing one with awe instead of terrible.  But in general I think he is right that particular word meanings have not changed that much.

For that reason, originalism does not actually depend that much on founding-era dictionaries.  Scholarship and opinions that emphasize founding-era dictionaries likely overstate their importance.  Of course we should consult founding-era dictionaries to be sure we are not dealing with the relatively unusual situation in which a key word has evolved dramatically in meaning.  But usually we will find that it has not (and we can determine that because at least most of the words in a founding-era dictionary have not evolved in this way).

In other words, originalism is (or should be) based on a rebuttable presumption that the words have not changed meaning (and dictionaries can be used to confirm this).  Justice Scalia approached the project in exactly this way.  First, he used founding-era dictionaries relatively rarely in his constitutional opinions.  Second, when he did use them, he frequently found that the original meaning and the modern meaning were the same.  For example, from D.C. v. Heller (often considered his most dictionary-driven opinion):  "The 18th-century meaning [of "arms"] is no different from the meaning today. [citing dictionaries].... At the time of the founding, as now, to 'bear' meant to 'carry.'" [citing dictionaries].   Similarly, from Morrison v. Olson:  "Dictionaries in use at the time of the Constitutional Convention gave the word 'inferiour' two meanings which it still bears today..."  Clearly he was using founding-era dictionaries to confirm that the meanings have not changed, not in service of a rebuttable presumption that they have changed.

I think this mostly solves the "infinite regress" problem described in the post.  But it does not lead to the conclusion that we can simply ignore history and use modern meanings.  The problem is, as the post acknowledges (albeit parenthetically): "The meanings of phrases in the Constitution is a different matter."

That's exactly right.  Even if words typically have the same dictionary meanings that they did in the founding era, the connotation of those words when put together and used in a particular context may differ considerably from what we would understand today.  That is the core challenge of originalism -- not primarily to translate founding-era words using founding-era dictionaries, but to understand how putting those words into constitutional phrases and clauses in the founding-era context affected their meaning in ways that may not align with modern usage.  The central question in Heller, for example, was whether the phrase "keep and bear arms" encompassed an individual right to have arms for self-defense.  That question is not answerable simply by looking at dictionary definitions, because (as Scalia acknowledged) the dictionary definitions don't tell us anything we don't already know.  The question is the meaning of the phrase, which may well have changed over time -- and indeed the core of the Heller opinion depends not on the dictionary definitions but on the Amendment's context.

So I agree that in the usual case founding-era dictionaries often are not so important, but I think that still leaves room for considerable originalist analysis.