January 29th, 2013

The Fact that Brad DeLong Doesn’t Understand Conservative Jurisprudence Doesn’t Mean the Rest of Us Have to Pretend

I don’t know about the rest of you, but when I try to understand and apply a particular jurisprudential doctrine, I don’t do it on the basis of what the most popular Google search turns out to be.

Here is a primer on original intent, which is smart enough—unlike Brad DeLong, one might add—to note that original intent “is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has led originalists from more predominant schools of thought such as original meaning to castigate original intent as much as legal realists do.” Here is an honest-to-goodness article on original public meaning; it is more in depth than is your typical Wikipedia article, which of course means that Brad DeLong won’t try to read it—it might chap his lips—but one can rather easily glean what original public meaning is by having enough patience to read just a few pages:

… only the text of the Constitution acquired the status of legitimate law. Only that text, not the unexpressed or uncommunicated intentions of the drafters, was offered to the country for ratification in 1787.  Likewise, only the texts of amendments are proposed to and ratified by state legislatures. The same argument may be expressed as a matter of democratic legitimacy. If the force of the Constitution is its endorsement by “the people,” then, given the ratification process, only the ratified text may claim that approval. This reasoning closely parallels some of the arguments for “textualist” statutory interpretation vigorously asserted by Justice Antonin Scalia in numerous judicial opinions as well as in extrajudicial writing.

Two years ago, when I tried to explain constitutional interpretation to Mark Kleiman—who is about as bad at understanding legal issues as is Brad DeLong—I noted another definition of original public meaning, courtesy of Larry Solum:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

The reason, of course, why conservatives insist that there is a difference between “original intent” and “original public meaning” has nothing whatsoever to do with any “embarrassment” regarding original intent. Rather, it has to do with the straightforward, entirely non-controversial, utterly-obvious-to-anyone-who-bothers-to-do-any-effing-research notion that there is a difference between “original intent” and “original public meaning,” and those who think otherwise ought to be corrected regarding their misapprehensions concerning this issue. And unless your name is Brad DeLong, this shouldn’t be too difficult to understand.

Incidentally, "original public meaning" comes up with 479 million results if you enter the phrase into Google without quotation marks. Does Brad DeLong know that you can employ a variety of Google searches to get information regarding a particular subject?

Oh, and I’ll ask the question again: Why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why, oh why can’t we have a better Brad DeLong?


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