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: Why was the theory of Originalism developed in the 1980s? Was it a response or answer to particular circumstances? GARY LAWSON: In the 1960s and 1970s, you could count on one hand, literally one hand, the number of prominent academic figures who were defending something that one could call originalism. The number of judges in the federal system defending it, that's easy, that would be zero. There were a few voices in the wilderness in the academy, names like Robert Bork, Raoul Berger. There was also this guy at the University of Virginia and the University of Chicago named Antonin Scalia, but he was not a prominent academic figure and he was not writing about original meaning. He was writing about things like the appointment process for administrative law judges and the 19th century history of federal land patents. He was not actually a contributor as an academic to the debate over constitutional interpretation You got these two people, Robert Bork, a law scholar, Raoul Berger who wasn't really affiliated with any institution. Raoul Berger was a concert violinist who at the age of 56, after a career as a concert violinist decided he wanted to take up constitutional theory, and so he read a lot of stuff and he wrote a lot of stuff. Some brilliant guy. I had the great honor of meeting him several times, and administering a prize named after him. Terrific. But he was not an academic in the traditional sense. The thing about Bork and Berger is they're writing in 1960s and 1970s when the Warren court is at least from the standpoint of original meaning, just making up all sorts of stuff that has not plausible grounding in the communicative content of the Constitution. Just take that as my own humble opinion. Their version of originalism focused very heavily on the intentions of the framers, and by that they meant the actual expressed thoughts and views of concrete historical figures. They would parse the comments, the statements made by historical figures, Madison, Jefferson, Hamilton, whoever, see what they said about various things and that would be taken as what the original meaning of the document was. Originalism starts out its academic life in modern times as focused on the specific historically concrete intentions of identifiable people who we can call the framers. That then starts to evolve as originalism becomes a more serious object of study as a new generation of people begin thinking carefully about constitutional interpretation and reassessing whether maybe this originalism stuff is not as bad as people thought. As this obscure academic named Antonin Scalia becomes a federal judge, first on the DC Circuit then on the Supreme Court of the United States, as Edwin Meese, an intellectual in the purest sense of the word, Ed Meese, a pure intellectual, everything good that's wrapped up in the term intellectual, that's Ed Meese. He becomes the United States Attorney General in the Reagan administration and starts collecting a group of intellectuals, starts having seminars within the department of justice so that's it become like a little law school. People start talking openly, thinking through with each other what this originalism means, starts to dawn on some people that maybe what we mean by the communicative content of the document is not what specific historical figures thought, but what a reasonable, hypothetical reader would understand it to me. Isn't that the better conception of what it is that a document like that is communicating? This culminates just before then Judge Scalia becomes a Supreme Court Justice where, at one of these seminars in the United States Department of Justice, we got 100 people in the Department of Justice sitting in seminar listening to this, gives a speech where he says, "You know, people have been talking about this original intent stuff. But that's not really what it's about, is it? We should stop talking like that. We should start talking about original public meaning because that's really what the communicative content of the document is.” Everyone in the room says that seems right. That's confirmed where the thinking had been going. At that point in time, by the mid-1980s, all the force of originalist thinking shifts away from what did Thomas Jefferson think, what did Alexander Hamilton think, what did James Madison think, what would a reasonable reader of this document in 1788 or 1791 think? It was not universal. There were, and to this day, still are, some originalists who still think the right way to think about it is, what did concrete individual actors believe, but from that point on, the weight of originalist thinking focused, shifted on original public meaning. The critics of originalism, which is 99% of the Legal Academy, didn't make the shift that early. You will still, even today, 35 years later, see academics criticizing a version of originalism that hasn't really been advanced by very many people in three decades, still talking about the old intentions of the framers and what's wrong with that, but people have stopped talking about that. The shift moves to theories of public understanding, public meaning, as the best way of ascertaining the communicative framework represented by this kind of document. It's about at that time, also, that you start to see people, namely yours truly, among others, try to make the distinction I made earlier between how you'd figure out the meaning of the document and what arguments you would make in favor of deciding cases for it. The original intentions of historical people argument makes more sense as a reason for deciding cases than it does figuring out the communicative content because you can try to ground an argument for, well, why would we do this today? Well, because really smart people who had some measure of authority said we should back then, so let's do what they said. If you believe that, then thinking about what they actually said make the ... but that's not necessarily the right way to figure out the communicative content of what they did. Fast forward now, another few decades, to the 21st century, right at the beginning. At that point, you start to see some theories of originalism that merge the old views. How would you do that? Well, if meaning really is grounded in the intentions of a communicator, and it is, that would seem, at first glance, to support the old intentions of the framer's view, but say this next generation of originalist thinkers, when you're dealing with a legal instrument that's meant to have a public presence, surely the intentions, the actual concrete intentions of an author would be to have it understood in light of its public meaning. Even if the theoretical grounding is intentions, the operation is public meaning. If you were going to take a poll of originalists today, I think you would find not necessarily a consensus, but a strong measure of support for that particular understanding of what the originalist project, as ascertainment of communicative meaning really is. For purposes of ascertaining communicative meaning, we've evolved from intentions of the framers to public understanding to public understanding as the intentions of the author. It's just that the author is not historically concrete individuals like Hamilton and Madison and Wilson and so forth. The author is this hypothetical legal entity called we the people that the preamble to the Constitution says is who is making the communication. As the Grateful Dead would say, "What a long, strange trip it's been," but that's roughly where we are right now. In terms of the normative arguments for why it's a good idea to decide cases based on this original public meaning, well, that's still something on which there is no consensus because there's a different category of arguments that are used. Originalism on that front is really an overlapping set of people who may have quite different reasons for thinking what they think, but who coalesce, who agree, on what it takes to ascertain the actual communicative content of the document. PUBLIUS: Did the Founders and subsequent generations of lawmakers interpret the Constitution in strict accordance with the written language, as modern originalists strive to do? GARY LAWSON: Two ways to answer that. If you look at what people actually did over those 150 years, and you match it to what a sober, objective assessment of the constitution of 1788 actually prescribes, you're going to find a lot of space in between those two. It's actually a fairly easy task to pick apart large chunks of what people did over that 150 period from 1788 up to the new deal, and say, "Here's what the Constitution of 1788 said. Here's what they did. It obviously doesn't match." To some extent, you can even say with some justification that people weren't even trying. Let me just give one especially noteworthy example. The very first statute enacted by the very first congress. This is the first Congress in 1789, right after ratification of the constitution. Whole bunch of people in Congress were part of the constitutional ratification process. Literally the first statute that they enacted, flagrantly, wildly, not even close, unconstitutional under any plausible understanding of the document that they had just adopted. What they did is the constitution requires that everybody swear an oath. It prescribes the exact form of everybody who is a government official, swear an oath to the constitution. Prescribes the exact words of the oath for the president, but not for everybody else. So Congress's first order of business was to prescribe the precise words of the oath that everybody had to take to support the constitution, and they did that for Congress. They did that for executive officials. They also tried to prescribe the form of the oath for state officials or the constitution requires have to take an oath but doesn't say what the oath should be. Now you can generate a power of Congress to prescribe the form of oath for federal officials from the necessary and proper clause. It's necessary for carrying into execution any of the foregoing powers that the people actually swear the constitutionally required oath before they carry out their powers. No way to get that for state officials. State officials will have to swear an oath of some kind, adequate to support the constitution before they can act. But Congress has no business telling them what the words have to be. It's an easy question. It was pointed out during the debates in the first congress, we have no power to do this. And the general reaction was, forget the con, screw that they just passed it and then moved on. Right? So the idea that everybody was all gung-ho, let's make sure that we follow this constitution, that went down the drain the very first time Congress acted, literally the first time Congress acted. So it's possible to take all of that together and say, well obviously they weren't really serious about using originalism as a decision method for all this time. Here's the other side of that though, almost never even in the cases where objective analysis coldly examined, would say, that can't possibly be consistent with the constitution of 1788. Almost never did people openly say, "Urgh stuff the constitution, forget that." Almost always they tried to couch what they were doing in the language of applying the actual constitution of 1788, even one of the most ridiculous, stupid, wildly unoriginalist decisions ever rendered in the history of the planet. Dred Scott versus Sanford, when the majority is just making crap up all over the place, they don't say, "Oh, by the way, we're making crap up because we don't care about this constitution thing from 1788." No, they couch what they're doing in the language of the constitution. What that suggests is that there is at least within the legal culture, a norm that that's what you're supposed to be doing. Even if you aren't really doing it. Even if we're winking at you while we know that you aren't doing it, we kind of get that that's what we're supposed to be doing. We feel a little bad about not doing it, but I think that's the best account of the first 150 years. No, people didn't do it, but it was honored in the breach. That is, breaching but honoring at the same time. PUBLIUS: How did “following the text of the Constitution” fall into disuse? How did we get to the situation that you described earlier in the 1960s and 70s? GARY LAWSON: Where you start to get people being more open about not liking the constitution, say the early part of the 1900s. As you get into the progressive movement and you read the writings of people who are trying to argue for a stronger role for the national government than the constitution of 1788 probably allows, allowing for the use of administrative agencies, experts in a fashion that the constitution of 1788 probably doesn't allow. You can start to see this is in scholars more than it is in judges. Open dissatisfaction with the constitution. You could trace it even earlier than that to Woodrow Wilson, who really didn't like the constitution very much. A lot of the early progressive thinkers in the 1900 don't really like the constitution very much and they say they don't really like the constitution very much. There's this old document and that people have this strange attachment to it and we've got to do something to get rid of their attachment to the constitution because otherwise we won't be able to do all the wonderful things we want to do. That really cascades in the 1930s when the new deal was crafted, the new deal involved a mammoth expansion of federal power, involved a mammoth transformation of the way in which government was structured. The forms by which government power was exercised, the role of administrative agencies, that impossible to square in any sensible way with the constitution of 1788. Now there were some new deal scholars who tried, who really did attempt on originalist terms to explain well, that original constitution is wide enough, flexible enough to accommodate what we're doing now. There were others who just admitted, we can't do that. We're going to do it anyway. It's fella named James Landis. Maybe the most important figure in American administrative law was the dean of Harvard law school, was a member of the Securities and Exchange Commission was one of the principle architects of the new deal administrative institutions. And he gave some speeches in 1936, collected in a book published in 1938 called The Administrative Process, and you read this book, it's just drips with the venom for the constitution of 1788, for this separation of power structure that somehow we have come to worship. All of this is getting in the way, says Landis, of smart people being able to do what everybody knows is a good idea. So to heck with this constitute, gives way to the exigencies of modern government, so you start having very, very, very prominent people very openly saying, if you have to choose between modern government and the constitution, easy call go with modern government, stuff the constitution. Now, relatively few judges were openly willing to cast what they were doing in that light. By the time you get to the 1960S, you will find judges, particularly justices on the supreme court who were more open about that sort of thing, who were prepared to say things like, "Well, yes, that's kind of what the constitution said, but times have changed." There actually decisions that say exactly that, the times have changed. Why the shift? Well, that's for sociologists to figure out why. Why it became appropriate, why it became culturally okay within the legal culture to say that in the 1960s when it probably wouldn't have been okay to say that in the 1820s, even if you thought it, that's not my field. That's not a question I'm equipped to answer. I do think it's observable that happened. As we translate into modern times, for every revolution there's a counter-revolution and then a counter-revolution after that. It would've been possible in the 1960s and 1970s to proclaim that originalism as a normative matter is a prescription for how cases should be decided was effectively dead. It was effectively dead in the legal academy. You could count on one hand the academics who would advocate that as a method. You could count on one hand the number of judicial decisions of the Supreme Court that invoked that as a method of reasoning. For some reason, starting in the mid 1970s and then accelerating into the 1980s, that started to shift. You started to see at least in limited areas, mostly involving separation of powers, Supreme Court decisions that actually referred to the text of the Constitution of 1788 and tried to do what it said. A case called Buckley versus Valeo in 1976. I'm gonna take a moment to explain this, but it's worth doing. Constitution contains an Appointments Clause that says how officers of the United States, people who exercise lots of power, have to be appointed. Normally, they're appointed by the President with the advice and consent of the Senate. If they're inferior officers, not the big guns, they can be appointed by the President alone, by the courts of law, by heads of departments like the Secretary of State, Secretary of Defense, if Congress passes a law that says they can do it. Those are the only ones. President with the advice and consent of the Senate, President alone, courts of law, heads of departments. Hard to come up with a provision of the Constitution clearer than that. Congress, nearly 1970s, creates the Federal Election Commission designed in the Watergate era to regulate financing and conduct the federal elections. Very important people. The folks who are gonna be running the Federal Election Commission have life or death authority over political candidates. Clearly, the sorts of people that the Constitution contemplates are gonna be appointed under this Appointments Clause. How are these people appointed? Well, some of them are appointed by the President but with the consent of Congress as a whole, not just the Senate. Congress as a whole. A couple of them are appointed by the speaker of the house, couple of them are appointed by the President pro tempore of the Senate. This is like prescribing that it's okay for the President to be 17 years old when the Constitution says 35. You couldn't imagine a more unconstitutional law if you tried. The statute is challenged and the DC Circuit Court of Appeals, second most powerful court of the United States. DC Circuit laughs off the challenge, "Why are you quoting the Constitution at us? Why are you talking about this Appointments Clause? Surely, Congress had good reasons for doing this. Go away." They had half a century of President behind them. Between 1935 and 1976 the number of federal statutes invalidated by federal courts on separation of powers grounds, based on the actual text of the Constitution. That would be zero. Court of Appeals laughs it off. It's a joke. Now, there's a syllogism behind this. Here's the Constitution, here's the statute, it doesn't match. Anyone who's taking philosophy knows syllogisms are really good arguments. If you got something that's a syllogism, that's as strong as you can get. Court of Appeals describes the argument as strikingly syllogistic and they mean that as a bad thing. That's not how you think about the Constitution. You don't look at the Constitution, read the thing and then figure out "No. We've gone past that." Supreme Court reversed. 1976. They read the Constitution, "Here's the statute. Can't do it." Huge. Transforming. Enormously important. Since that turning point, there's been something of a rebirth of the idea that maybe it's a good idea, at least sometimes, not always but sometimes, some cases, you might want to decide based on what this crusty old document actually says. That's obviously accelerated to some extent over the last few decades. I will modestly say the federalist society might have had something to do with making that idea more prominent. A good deal of the credit has to go to the Reagan administration and Attorney General Ed Meese who made it a mission to try to get this idea into public discourse. 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!