NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we explore the purpose and method of Originalism. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Let’s start with our title question. How do you define “originalism”? GARY LAWSON: When you encounter words, there's a pretty good chance, not 100%, but a pretty good chance that those words are designed as an act of communication. The way words communicate is they take concepts, abstract ideas, and they turn those into things that you can see, or hear, or feel, which makes them easier to deal with but underneath those words are the concepts that they represent. Those concepts in turn are identifications of things in relations in the world, they're sorting devices, they're ways in which a reasoning mind makes sense, organizes a complex, unruly world. So words as communications are attempts to describe a sorting process, a classification process of the world, that results in identification of things and relations. Well if you're trying to understand the words, whose framework would you use to try to figure out the sorting process. Because different people would experience the world differently and therefore sort it and organize it, differently. Originalism is the simple, straight forward idea, that if you're trying to understand a communication, you're trying to understand how that communication is trying to sort and organize things and relations in the world, you look at it from the framework of the communicator. The framework of whoever it is who put those words out there, at the time at which they put those words out there. Now that's not the only framework you could use, you could use the framework of somebody 300 years later, of somebody 300 years later who speaks a completely different language, of somebody 300 years later who's from a different planet. You could do all of those other things, the question is would those be efficacious at understanding the communication? An originalist’s basic insight is probably not, if you really want to understand the communication you've gotta look at what the communicator was trying to communicate. Now if you're not doing that, you're not communicating! What you're doing is inventing, inventing a meaning, nothing wrong with inventing a meaning, it maybe aesthetically pleasing, you may find it morally more satisfying than communicating but if what you want to do, hypothetically is understand the communication, you have to look at it from the stand point of the communicator. In practice it can get a little more complex than that, because certain kinds of communications are actually meant, intended by the framework of the communicator to be understood by a slightly different framework. Think about a legal document, legal documents are directed externally at the world. They're expected to have consequences in the world, other people besides the communicator are expected to be affected by, to understand that document. So it'd be natural to assume that part of the framework of a communicator in that setting is that the words are to be understood from the framework of someone else. Let's say a hypothetical, reasonable reader who stands in for the sorts of people in the real world who are going to be interpreting the document. Quite possible, if you were talking about a personal diary, that probably makes less sense, but you're talking about a legal instrument that's plausible. So operationally, what originalism really leads to is the notion that if you ought to understand a communication, where there's good reason to think that it's communication directed externally at the world, especially in a legal context. Figure out what a reasonable reader at the time of the communication would've understood it to mean. QED. PUBLIUS: Now that you’ve explained what Originalism is, when or why would you use it? GARY LAWSON: Why would anyone choose to interpret a document through originalism as I've just described it operationally looking at the understanding that a hypothetical, reasonable reader would've had at the time of the communication. Well that depends very much on what you are trying to do. If what you are trying to do is figure out what the communication represented by those words actually is. The reason to use originalism is because that's gonna get you the answer and other methods aren't! If what you're trying to do is give yourself emotional satisfaction, like you're reading a poem and what's important to you is not the communication, but rather how you feel about what you're reading. Maybe originalism isn't the greatest thing in the world. Originalism is a tool, a method for accomplishing a particular goal, if the goal is understanding a communication. Originalism's a really, really good way to understand the communication. Now in the legal context, particularly the Constitutional context, originalism has two quite distinct functions. They are not kept clear, even by many originalists, I would even say especially by many originalists. Let me try to define them, one, figuring out the meaning of a document, let's say the Constitution of the United States. For that purpose, for the reasons I just gave, figuring out the meaning of that communication, of course you have to be an originalist. No one, I don't think, seriously thinks otherwise, right? Problem is that in the modern world, the interpretation of the Constitution is bound up with, action, that is when courts for example, read the Constitution and they come up with what they think the communication is. There is a decent chance, not 100%, a decent chance that they will then act based on that understanding. They will enter orders, judgements, which will then be enforced by Marshalls, people with guns who will shoot people who don't comply. The second question is, why would you set that process into motion? Decide who has to do what, who gets shot for not complying, based on a methodology of originalism. That second question, I'll make this as clear as I can is not a question of law. It's not a question of legal theory, it's not a question that lawyers have any distinct capacity to answer. The question of moral and political philosophy. What's the appropriate basis for running a government? On what basis do you decide who to shoot and who not to shoot? And you can stare at as many documents you like and they're not going to give you the answer to that question, that's a moral and political judgment. So I try very sharply to distinguish as I hope you will as well, two different kinds of questions. One, what does the Constitution mean? For that purpose, for that question, originalism all the way down. Second question, why should anyone care what the Constitution means? That's a question of moral and political theory. Now there are perfectly good reasons why one can give as to why you should care what the Constitution means. Those reasons are not found in originalism, originalism is a theory of how to understand communications. The theory of how to understand communications. People can be originalists in both senses. Can believe you should understand the communications this way and you should run a world, that way today. People could be originalists about the meaning of communications but think it's a lousy way to run the world. You could even think, I suppose, that it's a lousy way to understand communications, but a good way to run the world. I don't know of anyone who thinks that but it's theoretically possible, right? So any time you're asking why originalism, you have to separate those two questions. Why are we interpreting a document figuring out what it says? Or are we actually prescribing conduct, telling people what to do and what not to do. Or what would and argument for the second kind of originalism look like? Turns out there are lots of them, I am neither endorsing nor rejecting those arguments, here I'm simply describing what they look like. They could look like, well the people who communicated back in 1788 were a whole lot wiser in the ways of humanity than people are today, so let's do what they say. Could sound something like, well, there is value in a social order of continuity, of finding points around which agreement can be reached, without having to redo the agreements every time something comes up you need stability and a Constitution with a relatively fixed meaning promotes stability. The argument could be, if you actually understand the meaning, the community of content of the Constitution of 1788, it's pretty darn good content. Maybe you could do better but the chances are we'd end up doing worse so let's go with what we've got. Lots of arguments, you can even combine those in different forms, my point is only that none of those arguments are compelled by the meaning of the document, they can't be, because they're of a different kind of intellectual form. Their arguments about what's a good way to run the world, as opposed to arguments about a good way to understand the communicative content of a document, and just untold mischief and confusion comes from all directions from failing to keep those two sets of questions separate. PUBLIUS: Do all Originalists manage to keep those questions separate? GARY LAWSON: I've just articulated a sharp distinction between two kinds of originalism. Do all originalists share my view that these are distinct? No, some of them do, some of them don't. There is a non-trivial group of originalists who would listen to what I just said and proclaim it crazy, because they see those two as so indissolubly connected, that even if there is a conceptual separation between them, there's no practical separation between them. And they are right if, if hypothetically one starts from the premise that modern government should be dictated by the meaning of the Constitution. That is if you believe in Constitutional government then of course the meaning of the Constitution is decisive for what you do. Lots of people, maybe even most people believe that premise without even thinking it through, it's just part of the backdrop, part of what they take for granted. This is why so much heat gets directed at originalism as a method of ascertaining communicative meaning. Cause there are people who start with the idea that well if we know that's the communicative meaning well then it must govern us today and I don't want to be governed by it today cause I don't much like the communicative meaning. So, instead of rejecting the idea that we should be governed with it today, they'll argue instead about the communicative meaning. So, no not all originalists will subscribe to this distinction, doesn't mean it isn't a valid distinction. Can you get any of this from the Constitution itself well you can get originalism as a communicative device from the Constitution in the sense that it presupposes that it's communicating something in the normal assumptions of communication are as I've described. Originalism is what Professor Cyprekosh once called a default rule of communications. The normal assumption of everybody communicating. Of me communicating now, of law professors who claim to hate originalism but who expect their law review articles to be read in light of the original meaning of their law review articles when they write them. Right? It's only when we translate that into the realm of action that we start to get controversy. And as I outlined in my last answer, there are all sorts of arguments potentially, mutually reinforcing that one can make as to why is it a good idea today for courts to decide cases in accordance with the communicative meaning as ascertained by originalism in 1788. My point is only that those arguments are of a different form indeed in a completely different domain than the arguments about communicative meaning. Again, I want to be very clear, not saying bad idea to decide Constitutional cases in accordance with the meaning of 1788. I actually think it's mostly a pretty good idea but the arguments for that, I recognize are very, very different than the arguments that I would make. They're softer arguments, they're in some sense weaker arguments than the arguments for how you go about ascertaining communicative meaning. Again, untold confusion comes from confusing those two kinds of arguments. Just hope that I can persuade some people, that it's a distinction that's worth keeping in mind. PUBLIUS: Were the Founding Fathers themselves originalists? GARY LAWSON: So was the founding generation originalist? Well I think it's safe to say they were originalist in the interpretative sense, in the sense of understanding how you would ascertain the communicative meaning of an instrument particularly a legal instrument. Were they originalist in the second sense, did they think it was a good idea for future people to run their lives in accordance with the meaning of 1788. Well they were not of one mind on that. We know Thomas Jefferson wanted a new constitution to be done every 25 years or so, so that each generation could update it. Whether he would approve of five lawyers wearing robes, taking it upon themselves every 25 years to exercise that function, that's a different question. But he was alert to the possibility that maybe redoing things every so often isn't such a bad idea. How representative was Jefferson of the founding generation? Historians would know that better than I would. Let me just offer this observation, there were a whole bunch of people in the founding generation who had no expectation whatsoever that the United States would survive very long. There's a wonderful exchange at the Constitutional Convention between Nathaniel Gorham and James Madison. Were proposing a change to the way in which representation in Congress would be allocated, they were hoping that there'd, some people were hoping that there would be a cap on how many people any representative could represent. So the maximum size of any legislative district and one of the objections to that cap was well, the United States expands, so go westward as you add more states. If you have that cap you're gonna have such a huge legislature, you're gonna have nine thousand people in the legislature and you can't possibly have that. And Gorham's response, “nobody actually thinks the country's gonna survive that long do they?” So for people who have that kind of attitude can you really say that they were strong originalists in the second sense. That they expected or wanted what they did in 1788 to govern people later on, maybe not, maybe not. PUBLIUS: Just to wrap up, how would you characterize your own approach to Originalism? GARY LAWSON: All right. For anyone who cares, where do I fit into this modern schema of originalists? What's my contribution? In particular, how do I differ from my old boss, Justice Scalia? Well, Justice Scalia ... Remember, I'm distinguishing two kinds of questions about originalism. What is the communicative content of the document, and how should courts decide cases? Justice Scalia was always, always interested in that second question. He was interested in that first question only in so far as it helped one answer the second. His focus was on the role of the judge, judge as an actor in a functioning governmental system. What is it that judges should do? He was committed to originalism as a method of deciding cases because he thought anything else would just let judges substitute their own policy preferences for what other people would do, and that was a bad thing. His focus on communicative meaning was ancillary to incidental to his focus on figuring out the role of the judge. I came to all this from a very, very different perspective. I was interested in this stuff from the standpoint of philosophy, theory of knowledge. How is it that you would ascertain the meaning of a document? I was just always asking a different set of questions than Justice Scalia was. It was that different set of questions that led me to the sharp distinction between what the Constitution actually says and what anybody ought to do with what the Constitution says, and how the arguments for those two different kinds of originalism necessarily have to be different. Justice Scalia never saw that distinction because he thought the pure historical question was uninteresting unless it was linked to, somehow tied into, the question about how judges should decide cases. To some extent, that distinction among originalists is still there. Most of them, I would say, are focused on the Scalia questions, how cases should actually be decided, but there are still a few of us who concentrate our efforts on the less interesting, but, nonetheless, important question, how do you figure out, how do you ascertain the meaning, for anyone who cares. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about Originalism. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!