Thursday, March 17, 2016

Was there even such thing as an “original meaning” of the constitution?

In at least two of my political science classes back at Hopkins, I heard professors assert as fact the idea that “there was no original interpretation!” of the constitution. The logic behind this viewpoint goes something like this:

“The constitution is at times ambiguous or vague, and even many of the framers disagreed about what it should mean. One famous example is Thomas Jefferson and Alexander Hamilton disagreeing about the National Bank. If even they could not agree on what they meant by it, how can we possibly figure it out today?”

First, we need to distinguish between ambiguity and vagueness. Ambiguity is when the same word can have multiple meanings that aren’t necessarily related. For example, “the right to bear arms” could technically mean either the right to carry weapons or the right to the upper appendages of animals from the Ursidae family. As that exaggerated example illustrates, intra-constitutional context can almost always determine which meaning was intended in cases of ambiguity.

Vagueness is different. Vagueness is when the general concept of something is understood, but the precise boundaries of that concept in practice remain uncertain. For example, prohibitions against “unreasonable search and seizure” carry a general connotation, but don’t specify what counts as that. In the case of vagueness, intra-constitutional context often does not suffice, so it’s okay to turn to extra-constitutional sources from the framing era or earlier to help resolve the matter.

However, this is okay only insofar as such sources are useful towards better informing our best guess as to what the meaning was at the time of ratification. This is important because it’s very different from the way left-wing justices handle vagueness today: proposing entirely new interpretations that lie far beyond the range of debate the framers ever conceived.

To visualize this, suppose all federal power could be quantified on a scale from 1-10 (one being almost no power, and ten being absolute power). Further suppose that clause X of the constitution was kind of vague: some Antifederalists felt it granted as few as two units of power, and some Federalists felt it granted as much as five units of power. It would be a reasonable argument, even an originalist argument, to propose a law that exercised four units of power, and then cite quotes from the Federalist framers as evidence this law was originally comprehended (at least by some) to fall within clause X.

This is not what “living document” theorists do. Instead, they propose a law that wields eight units of power, and claim it is constitutional under an entirely new, far more expansive interpretation of the clause. The recognition that there is no singular, unanimous original interpretation to harken back to is a fair point, insofar as it relates to your advocacy for one original interpretation over another.  But it does not follow from that observation that we should scrap the entire premise of understanding the words as they were originally understood. A proposed power needn’t have been unanimously favored by every framer – but it does need to be plausibly favored by some of the framers.

Put another way, the central premise of originalism is not that nothing in the constitution is up for interpretation, or that the answers are always clear. We do not eschew, deemphasize, or deny the necessary and complex work of deciphering the constitution’s meaning. What we’re about is clarifying which meaning which we ought to attempt to decipher in the first place. Specifically, we think the meaning that matters is the one which the people most likely understood when they consented to subject themselves to a government at the ratifying conventions. Alternative meanings which might be plausibly read into the constitution’s text by today’s most creative legal minds may be an interesting academic exercise, but without evidence that anyone officially consented to such an understanding of federal power, they can carry no moral or legal authority.

With that said, most reasonable originalists concede that there are certain passages of the constitution for which no specific meaning can be deciphered with a high degree of certainty. Originalists sometimes differ on how to handle these situations. My personal opinion on the matter is derived from famed originalist Randy Barnett’s “presumption of liberty.”

In the event that no guess as to the originally understood meaning is objectively more likely than another, consent theory mandates that the court must err on the side of nonconsent: that is, the side of unconstitutionality. The entire purpose of a constitution is to legitimize a government’s actions by attaining (or at least, attempting to claim) the consent of the governed. If there remains great doubt as to what it was that the people consented to in a particular case, it cannot be clearly known that the people freely subjected themselves to the exercise of power in question.

As anyone concerned by rape or sexual assault on college campuses should be able to tell you, if consent is not clear and unambiguous, it cannot be presumed to exist. Whenever anyone questions the constitutionality of the government’s actions, the nature of the social contract demands that the burden of proof be on those who claim authority. The same is true not only for governments, but for anybody who seeks to use another’s person or property. Until the authority to do so is definitively proven, the court must presume it does not exist at all.

This “presumption of liberty” need not come into play too often, however, as the constitution is usually much clearer than living document theorists pretend. Those who wish to wield power are biased arbiters: they have a natural incentive to read clauses as broadly as possible. Feigning confusion at seemingly straightforward passages enables the judiciary to work around inconvenient limits on federal power, thereby legitimizing interpretations that a neutral outsider would never reach upon first reading. Creating “gun free school zones” as an exercise of the commerce clause is a prime example of this. Very often, the most immediately obvious and intuitive interpretation of the constitution is the correct one.

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