NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we explore the method and purpose of Originalism. Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and Values at University of Toledo College of Law. Professor Strang writes and teaches about Originalism, Constitutional Law, Property, and religion and the First Amendment. 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: In this episode, I want to talk about how Originalism actually works. What are the basic assumptions that all Originalists start with? Does the process of Constitutional interpretation or finding meaning always look the same? LEE STRANG: The first major commitment of originalism is that the Constitution's meaning was fixed at the time it was ratified. There's a robust debate going on within originalism about what is that fixed meaning. And the current major modes of thinking about that are original intent, original meaning, original understanding, original methods, and then original law originalism. So there's a plethora of views out there. And articulating those different views, I don't want to give the false impression that they're hermetically sealed off and never the twain shall meet, that, in fact, there is significant overlap over most of those different views. In fact, my own view is that there is either no, or almost no, distinction as a practical matter between original intent, original understanding, original meaning, and original methods. So how does one, once one knows what one's motive of originalism one is using, how does one try to uncover that original, I'm going to use the word meaning, of the Constitution? There are three basic processes that originalists have identified to uncover the original meaning. So the first is the method of immersion. And the method of immersion is the idea that the Constitution, the original Constitution in particular, but the Reconstruction Constitution at a later period of time, the Progressive Era amendments at another period of time, and on and on, all came about in a particular historical context. And that the more that one is familiar with that historical context, the better one can understand in that context what the public meaning of that text likely was. So reading a lot of secondary literature on the founding period, the framing and ratification, would help one become better acquainted with the debates that the framers and ratifiers were having, the challenges that they faced, the opportunities that they saw, the goals that they had. The second method that originalists have identified is the method of legislative history, that when we try to understand the original meaning of a particular provision of the Constitution, we try to look at its legislative history, the background, the legal background for that clause. That can include distant legislative history, so legislative history. Law didn't just start in 1787. There typically are legal antecedents prior to that. So for example, with the Commerce Clause in our current Constitution, there was a previous clause dealing with commerce between the United States and states and Indian tribes. And so there's a relationship, a legislative history relationship that one can look to fruitfully to help understand how the similar but different current Commerce Clause, what its meaning was. One would look to the Philadelphia Convention, look to the debates. Why was a provision proposed? What did the framers argue that it meant? When they inserted a comma, when they deleted a semicolon, what did it mean? Look to the Ratification Debates. So the Ratification Debates were carried out in public eye. There were arguments in favor of it, and those arguments made arguments about what the Constitution meant. There were arguments against the Constitution, and those arguments also made arguments about what the Constitution meant. And then you had the framing, the ratification. It mentions themselves in Pennsylvania and other states where we have legislative history about the meaning of those various provisions. So the method of legislative history looks to all of these different sources of information. Third and newest, is the method of corpus linguistics. Corpus linguistics is using computer-assisted research of large databases of contemporary documents called corpora, hence corpus linguistics, to identify conventional or standard usages and meanings of terms. And so, as an example, let's say we're trying to find out what was the original meaning of the word commerce in 1787? What an originalist scholar would do, in fact, originalist scholars have done this, is they'll look at contemporary bodies of documents which are electronically stored, and then search for every use of the word commerce in that document. And then through other mechanisms, including, for example, things like co-location. So what is the word that most often appears with the word commerce, and therefore may be a synonym of the word commerce, draw additional information of contemporary time about the public meaning of that word. And so the originalist scholar will do the immersion, the legislative history, and the corpus linguistics, and then put all of those three different methods together. Now, the ideal, of course, is if all of those three methods led to the same conclusion in which one can have a high degree of confidence that the original meaning is what those three methods are pointing to. Or let's say that one is asking whether or not the original meaning of a word is X and all three methods say it's not X. One can have a high degree of confidence. Now things become much more of a judgment call, of course, if you have different methods pointing in different directions. So those three methods characterize the way that originalists approach trying to ascertain the original meaning. PUBLIUS: So Originalism is a framework for interpreting the Constitution but scholars can use different methods to find meaning. What advantages does this framework have for judges? LEE STRANG: Originalism provides a neutral framework for judges because the core of originalism is that there is a fact of the world. It's the Constitution's public meaning when the text was ratified. And that to the extent that that public meaning is accessible to Americans generally, and to judges in particular, then that fact of the world is something that's neutral, vis-a-vis different political, jurisprudential, or ideological perspectives. And then the second component of originalism is the constraint principle, so judges and others should follow the original meaning in their official duties. And that constraint principle is neutral as well. It doesn't care what your political, or ideological, or jurisprudential views are. If you're a judge, you should follow the Constitution's original meaning. Now that's in the focal case of originalism, where there's determinant original meaning that the judge has access to, the judge should follow it. Now, there are also instances, though, where judges actually have choice. Judges have choice when the Constitution's original meaning is under-determined, when it doesn't give enough information in order for a judge to understand what the outcome of a particular case should be. This is what originalists called the construction zone. And in that construction zone, there's a robust debate among originalists over how judges should approach that indeterminacy, how judges should construct constitutional meaning in the construction zone. My own view is that judges should utilize their own conception of justice, their virtues of practical wisdom, their commitment to the existing law, such as it is, even though it has a gap, to make the best decision, all things considered, to how to construct constitutional meaning. But there are many other views out there as well. And in that area of the construction zone, originalism would not be neutral because different judges with different philosophical, jurisprudential, political, and ideological views are going to construct constitutional meaning differently. Second, when a judge is faced with non-originalist precedent, my argument is that judges should evaluate that non-originalist precedent and decide whether to overrule it, distinguish it, or follow it based on the application of three factors. The first factor is to what degree does this non-originalist precedent deviate from the Constitution's original meaning? Second, would overruling the precedent, or to what degree would overruling the precedent, undermine rule of law values. And then third is the precedent, even though it's mistaken, even though it's actually illegal because it's inconsistent with the original meaning, does it still create just relationships among Americans? Now, reasonable judges, on the second and third elements, depending on their political, jurisprudential, and ideological perspectives, may have different views about what counts as a reliance interest or how weighty they are. And in particular, they'll have different views about whether or not a precedent creates just relationships, because there are different conceptions of justice, depending on one's other philosophical commitments. And so in that second area as well, originalism is not neutral in the sense that it allows different judges with different political perspectives to implement those perspectives in how they approach non-originalist precedent. PUBLIUS: Is Originalism ultimately more democratic than other methods of interpretation? Does it leave the people and their elected representatives with more power over policy making? LEE STRANG: One of the points upon which different theories of interpretation try to engage with each other is on whether and to what extent a particular theory of interpretation is advantageous to democratic processes, or undermines those democratic processes. And for a long period of time, early originalists, especially in the 1970s, the 1980s, made the argument that one of the key virtues of originalism is that it tied the hands of federal judges to the Constitution's original meaning so that those judges wouldn't go around willy-nilly for policy reasons, non-legal reasons, striking down acts, especially of the state legislature. So think of cases like Miranda versus Arizona, think of the Supreme Court striking down different state restrictions on pornographic speech. So that's the kind of view about non-originalism that these early originalists had in mind. And I think there is some truth to that. There is some truth, but that truth is contingent on the Constitution's original meaning because it is also the case that originalism leads, in fact, to restrictions on democratic processes. So NFIB versus Sebelius was the constitutional challenge to the Affordable Care Act. The Affordable Care Act was passed by Congress, signed by a popular president, and most originalists argue that the original meaning of the Commerce Clause did not authorize the Affordable Care Act's prescription of the individual mandate. So that seems to be an instance where originalism would limit and perhaps undermine democratic processes. There's actually maybe a deeper way, though, in which originalism facilitates democratic processes, and this is associated with the scholar Keith Whittington from Princeton. And Professor Whittington's insight is that if you have a Supreme Court that sticks with the original meaning, even when the original meaning is unpopular, you're going to have two products of that. So one product is that following the original meaning by the Supreme Court is going to incentivize the American people if they want to change the Constitution to channel that change into Article V amendment processes, because the American people are going to know we can't change the composition of the court to therefore change the court's interpretation of the Constitution, so we have to channel our energies through actual amendment processes, and that is a democratic process. A second way to think about it is that by the Supreme Court not using non-originalism, the Supreme Court doesn't disincentivize the American people from engaging in democratic processes. And I'll give you an example on that point. So the Privileges or Immunities Clause of the Fourteenth Amendment was adopted in 1868. By most scholars accounts, it was the most important part of the Fourteenth Amendment, and it was meant to be both a sword and a shield for newly free Black Americans and their Republican allies in the South against recalcitrant states in the Southern part of the country. But if you've taken constitutional law, you know the rest of the story, which is three years later, in a series of cases called the Slaughterhouse Cases, the Supreme Court, through a non-originalist interpretation, undermined the Privileges or Immunities Clause and effectively wrote it out of existence. So you had a popular decision by the American people, certainly one that was after a hard fought battle, put in the Constitution, and non-originalism essentially wrote that out. Now compare that to another example, where in the early 1970s, the American people were debating a proposed amendment called the Equal Rights Amendment. The Equal Rights Amendment would have amended the text of the Constitution to add text about men and women in different places where there's only the male pronoun in the Constitution. And there was a robust debate going on in the United States about whether adopting that amendment was a good or bad idea. And by most historians' account, that amendment was on its way to being passed in the appropriate number of state legislatures. And then, if you've had constitutional law, you know that in 1976, in a case called Craig versus Boren, using a non-originalist methodology, the Supreme Court creatively interpreted the Equal Protection Clause to impose heightened scrutiny on gender classifications. So the opponents of the Equal Rights Amendment then went to the remaining state legislatures, including some of the legislatures that had previously adopted the amendment, and said, "Hey, you don't need to adopt the amendment because the Supreme Court has already done the work for us." So the Supreme Court disincentivized a valuable and important debate, democratic debate, that was going on at that time. And so I think you see, in those instances, non-originalism undermining democratic processes. Now compare that to an alternative circumstance. So in the United States in the early 19th century, there were a number of women and men, typically going by the name of suffragettes, who wanted to expand the franchise both on a state level and a national level to include women. And the suffragettes were politically active, they were legally active, and they steadily gained political influence, especially on the state level. The debate continued up until 1920, when the United States adopted the Nineteenth Amendment, which guaranteed all American citizens the right to vote, regardless of one's sex or gender. And compare the response to that, which is Americans, since 1920, have never questioned whether or not there should be barriers to voting based on one's sex. But since 1976, there have been continuing debates over the Equal Rights Amendment. There have been continuing debates over the role of heightened scrutiny for gender classifications. I think what this shows is that the process of coming to constitutional amendments through the democratic process is an incredibly healthy process. It's one in which, despite its vigor, despite maybe even its debate and some negativity that goes on during the time, the American people come to a resolution, put it in the Constitution, and don't look back. But when the Supreme Court intervenes in non-originalist interpretations, it short circuits that democratic process. So I think there is a deep way in which non-originalism both disincentivizes and ultimately undermines democratic processes. PUBLIUS: Does Originalism always lead to desirable outcomes? LEE STRANG: Originalism doesn't always lead to good outcomes. There's actually a famous law review article, I think it's from the 1970s, called “The Perfect Constitution,” and it was written by a scholar who looked around at living constitutionalist scholars and the claims that they made about the meaning of the Constitution. And this author said, "It seems like everybody seems to say we all have a perfect Constitution, and originalism clearly does not lead to a perfect constitution." In fact, it's one of the main arguments that critics of originalism lodge against it, that the original interpretation leads to results, leads to conclusions, leads to outcomes that under contemporary ethical, political, or other standards, the critic finds unacceptable. I actually agree with the criticism. I think there are many instances in which the original meaning leads to outcomes that I think are at best imprudent, and in many instances, unjust. For example, Article III gives to federal judges, effectively, lifetime tenure. That may have been a good choice at the beginning of the Republic, where you were trying to establish the independence of the federal judiciary. It may have been a good choice when the average lifespan of American males was approximately 55. It is not a good choice, it's an imprudent choice, when you have federal judges who are appointed at one age and then who stay on the court for the next 30 years. And that has led to the Supreme Court and Supreme Court appointments taking on an undue relevance in what is supposed to be a democratic republic. And so it is clearly the case that the Constitution includes imprudent and unjust provisions. Now, what does that mean for originalism? Does that mean that that's a reason to not utilize originalism? And I don't think that's the case at all. I think that's a category mistake. So let's say that you were to have an email or a letter from a friend, and let's say that... Or who you thought was a friend. And then in the letter, the friend says to you, "You are an," and then spelling out a-hole, so saying something very negative to you. And what would you do in response to that? Would you say that because that's a negative statement about me that, actually, the friend didn't say that negative thing? No. What you'd say is that you read that in the way that it conventionally meant, and you realized that that person you thought was a friend, in fact, was not your friend. And so the meaning of a written text is different than whether or not that written text's meaning is good or bad. And the same thing with the Constitution. The original meaning of the text is different from whether or not that original meaning is good or bad. And so one cannot, one should not say that because the original meaning in this instance is bad, therefore, I reject that as the actual meaning of the document. In fact, I think what the imperfections of originalism, what these bad results lead to, or examples of, is in fact, show that originalism is an authentic theory of interpretation in a way that other theories of interpretation which fail to find, or fail to find with the severity or the frequency, imperfect results that those other purported theories of interpretation, in fact, aren't theories of interpretation. They're theories of creation. And so why is that? It's because that the Constitution was drafted, the Constitution was written, the Constitution was authorized by flesh and blood human beings. And as James Madison said in Federalist 10, flesh and blood human beings sometimes do great things, and sometimes don't do great things. And all of us suffer from the limits of lack of knowledge or limits on our knowledge, all of us suffer from being power hungry, from being blinded by our own prejudices of our own particular time period, and the Constitution reflects the inadequacies and the limits of the American framers and ratifiers. And therefore, like any other human artifact, the fact that the Constitution has limits is evidence of its human createdness. And that originalism's own limits, which reflect the artifacts limits, is evidence that originalism is authentically interpreting the Constitution. So it is clearly the case that originalism leads to, I think, imprudent, and in some instances, unjust results. That's not a reason to reject originalism. That's a reason to say that originalism is an authentic theory of interpretation, and then what's the response? So let's say that you think that there's something that's unjust or something that's imprudent. Well, what that suggests is that Americans revive their civic muscles, that they seek to amend the Constitution, they seek to change state law or federal law within the spheres of the state and federal authority to have a better policy perspective on whatever that issue might be. PUBLIUS: On that note, is there anything that you wish people knew about Originalism? About when or why it might be practically useful for evaluating policies? LEE STRANG: Originalism as a theory of interpretation has something to say about every, or almost every hot button issue that Americans face today in a phase for a long period of time, either directly or indirectly. And that's because the constitution in the United States either directly or indirectly provides input on those issues. So one way it does so, that originalism and the constitution do so is by identifying who the relevant decision maker is for an important legal, ethical, or social issue. And that could be the federal Congress, that could be a state legislature, that could be the federal judiciary on a variety of issues. So one of the debates that we have is over the scope of gun rights or gun control, and the constitution has allocated, its original meaning has allocated responsibility among a couple of different aspects of Americans. So one aspect is private Americans. So Americans under the second amendment have an individual right to keep and bear arms. So they get a choice about, do we exercise that and to what degree do we exercise that? But that's coupled with a state and then to a lesser degree, federal control over the exercise of gun rights. So there's some role for state and federal regulation of how the use of guns by citizens in those respective jurisdictions. And that's in turn shared responsibility with the federal and state judiciaries over interpreting the Second Amendment because the federal and state judiciaries also have a role in identifying the scope of the Second Amendment, which then has a feedback loop to, well, what powers do the federal and state legislatures have, which then in turn has a feedback loop to, to what extent can individual citizens exercise the right to keep and bear arms. So originalism doesn't necessarily directly answer the question about how broad should our right to keep and bear arms be, but it does identify three relevant decision makers who all have input and together come up with the conclusion that in our political community identifies the scope of the ability to keep and bear arms. But there are certainly times where originalism directly answers questions. Is it the case that the constitution's Eighth Amendment allows for the death penalty? I think determinatively the death penalty is constitutional under the cruel unusual punishment clause. Does Congress have the power to regulate the interstate purchase and sale of health insurance plans? I think determinatively the commerce clause authorizes Congress to do that. And there's lots of other things that the commerce clause doesn't authorize Congress to do. So for example, does the original meaning authorize Congress to require every American to purchase government approved health insurance the issue edit, in the case of NFIB versus Sebellius? I think the answer is determinatively, no, on that point. So there are a lot of questions that originalism in the constitution directly answer, but even when it doesn't directly answer those questions, it identifies who the relevant decision makers are under our legal system. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Property Law. 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! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we explore the method and purpose of Originalism. Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and Values at University of Toledo College of Law. Professor Strang writes and teaches about Originalism, Constitutional Law, Property, and religion and the First Amendment. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. In this episode, I want to talk about how Originalism actually works. What are the basic assumptions that all Originalists start with? Does the process of Constitutional interpretation or finding meaning always look the same? The first major commitment of originalism is that the Constitution's meaning was fixed at the time it was ratified. There's a robust debate going on within originalism about what is that fixed meaning. And the current major modes of thinking about that are original intent, original meaning, original understanding, original methods, and then original law originalism. So there's a plethora of views out there. And articulating those different views, I don't want to give the false impression that they're hermetically sealed off and never the twain shall meet, that, in fact, there is significant overlap over most of those different views. In fact, my own view is that there is either no, or almost no, distinction as a practical matter between original intent, original understanding, original meaning, and original methods. So how does one, once one knows what one's motive of originalism one is using, how does one try to uncover that original, I'm going to use the word meaning, of the Constitution? There are three basic processes that originalists have identified to uncover the original meaning. So the first is the method of immersion. And the method of immersion is the idea that the Constitution, the original Constitution in particular, but the Reconstruction Constitution at a later period of time, the Progressive Era amendments at another period of time, and on and on, all came about in a particular historical context. And that the more that one is familiar with that historical context, the better one can understand in that context what the public meaning of that text likely was. So reading a lot of secondary literature on the founding period, the framing and ratification, would help one become better acquainted with the debates that the framers and ratifiers were having, the challenges that they faced, the opportunities that they saw, the goals that they had. The second method that originalists have identified is the method of legislative history, that when we try to understand the original meaning of a particular provision of the Constitution, we try to look at its legislative history, the background, the legal background for that clause. That can include distant legislative history, so legislative history. Law didn't just start in 1787. There typically are legal antecedents prior to that. So for example, with the Commerce Clause in our current Constitution, there was a previous clause dealing with commerce between the United States and states and Indian tribes. And so there's a relationship, a legislative history relationship that one can look to fruitfully to help understand how the similar but different current Commerce Clause, what its meaning was. One would look to the Philadelphia Convention, look to the debates. Why was a provision proposed? What did the framers argue that it meant? When they inserted a comma, when they deleted a semicolon, what did it mean? Look to the Ratification Debates. So the Ratification Debates were carried out in public eye. There were arguments in favor of it, and those arguments made arguments about what the Constitution meant. There were arguments against the Constitution, and those arguments also made arguments about what the Constitution meant. And then you had the framing, the ratification. It mentions themselves in Pennsylvania and other states where we have legislative history about the meaning of those various provisions. So the method of legislative history looks to all of these different sources of information. Third and newest, is the method of corpus linguistics. Corpus linguistics is using computer-assisted research of large databases of contemporary documents called corpora, hence corpus linguistics, to identify conventional or standard usages and meanings of terms. And so, as an example, let's say we're trying to find out what was the original meaning of the word commerce in 1787? What an originalist scholar would do, in fact, originalist scholars have done this, is they'll look at contemporary bodies of documents which are electronically stored, and then search for every use of the word commerce in that document. And then through other mechanisms, including, for example, things like co-location. So what is the word that most often appears with the word commerce, and therefore may be a synonym of the word commerce, draw additional information of contemporary time about the public meaning of that word. And so the originalist scholar will do the immersion, the legislative history, and the corpus linguistics, and then put all of those three different methods together. Now, the ideal, of course, is if all of those three methods led to the same conclusion in which one can have a high degree of confidence that the original meaning is what those three methods are pointing to. Or let's say that one is asking whether or not the original meaning of a word is X and all three methods say it's not X. One can have a high degree of confidence. Now things become much more of a judgment call, of course, if you have different methods pointing in different directions. So those three methods characterize the way that originalists approach trying to ascertain the original meaning. So Originalism is a framework for interpreting the Constitution but scholars can use different methods to find meaning. What advantages does this framework have for judges? Originalism provides a neutral framework for judges because the core of originalism is that there is a fact of the world. It's the Constitution's public meaning when the text was ratified. And that to the extent that that public meaning is accessible to Americans generally, and to judges in particular, then that fact of the world is something that's neutral, vis-a-vis different political, jurisprudential, or ideological perspectives. And then the second component of originalism is the constraint principle, so judges and others should follow the original meaning in their official duties. And that constraint principle is neutral as well. It doesn't care what your political, or ideological, or jurisprudential views are. If you're a judge, you should follow the Constitution's original meaning. Now that's in the focal case of originalism, where there's determinant original meaning that the judge has access to, the judge should follow it. Now, there are also instances, though, where judges actually have choice. Judges have choice when the Constitution's original meaning is under-determined, when it doesn't give enough information in order for a judge to understand what the outcome of a particular case should be. This is what originalists called the construction zone. And in that construction zone, there's a robust debate among originalists over how judges should approach that indeterminacy, how judges should construct constitutional meaning in the construction zone. My own view is that judges should utilize their own conception of justice, their virtues of practical wisdom, their commitment to the existing law, such as it is, even though it has a gap, to make the best decision, all things considered, to how to construct constitutional meaning. But there are many other views out there as well. And in that area of the construction zone, originalism would not be neutral because different judges with different philosophical, jurisprudential, political, and ideological views are going to construct constitutional meaning differently. Second, when a judge is faced with non-originalist precedent, my argument is that judges should evaluate that non-originalist precedent and decide whether to overrule it, distinguish it, or follow it based on the application of three factors. The first factor is to what degree does this non-originalist precedent deviate from the Constitution's original meaning? Second, would overruling the precedent, or to what degree would overruling the precedent, undermine rule of law values. And then third is the precedent, even though it's mistaken, even though it's actually illegal because it's inconsistent with the original meaning, does it still create just relationships among Americans? Now, reasonable judges, on the second and third elements, depending on their political, jurisprudential, and ideological perspectives, may have different views about what counts as a reliance interest or how weighty they are. And in particular, they'll have different views about whether or not a precedent creates just relationships, because there are different conceptions of justice, depending on one's other philosophical commitments. And so in that second area as well, originalism is not neutral in the sense that it allows different judges with different political perspectives to implement those perspectives in how they approach non-originalist precedent. Is Originalism ultimately more democratic than other methods of interpretation? Does it leave the people and their elected representatives with more power over policy making? One of the points upon which different theories of interpretation try to engage with each other is on whether and to what extent a particular theory of interpretation is advantageous to democratic processes, or undermines those democratic processes. And for a long period of time, early originalists, especially in the 1970s, the 1980s, made the argument that one of the key virtues of originalism is that it tied the hands of federal judges to the Constitution's original meaning so that those judges wouldn't go around willy-nilly for policy reasons, non-legal reasons, striking down acts, especially of the state legislature. So think of cases like Miranda versus Arizona, think of the Supreme Court striking down different state restrictions on pornographic speech. So that's the kind of view about non-originalism that these early originalists had in mind. And I think there is some truth to that. There is some truth, but that truth is contingent on the Constitution's original meaning because it is also the case that originalism leads, in fact, to restrictions on democratic processes. So NFIB versus Sebelius was the constitutional challenge to the Affordable Care Act. The Affordable Care Act was passed by Congress, signed by a popular president, and most originalists argue that the original meaning of the Commerce Clause did not authorize the Affordable Care Act's prescription of the individual mandate. So that seems to be an instance where originalism would limit and perhaps undermine democratic processes. There's actually maybe a deeper way, though, in which originalism facilitates democratic processes, and this is associated with the scholar Keith Whittington from Princeton. And Professor Whittington's insight is that if you have a Supreme Court that sticks with the original meaning, even when the original meaning is unpopular, you're going to have two products of that. So one product is that following the original meaning by the Supreme Court is going to incentivize the American people if they want to change the Constitution to channel that change into Article V amendment processes, because the American people are going to know we can't change the composition of the court to therefore change the court's interpretation of the Constitution, so we have to channel our energies through actual amendment processes, and that is a democratic process. A second way to think about it is that by the Supreme Court not using non-originalism, the Supreme Court doesn't disincentivize the American people from engaging in democratic processes. And I'll give you an example on that point. So the Privileges or Immunities Clause of the Fourteenth Amendment was adopted in 1868. By most scholars accounts, it was the most important part of the Fourteenth Amendment, and it was meant to be both a sword and a shield for newly free Black Americans and their Republican allies in the South against recalcitrant states in the Southern part of the country. But if you've taken constitutional law, you know the rest of the story, which is three years later, in a series of cases called the Slaughterhouse Cases, the Supreme Court, through a non-originalist interpretation, undermined the Privileges or Immunities Clause and effectively wrote it out of existence. So you had a popular decision by the American people, certainly one that was after a hard fought battle, put in the Constitution, and non-originalism essentially wrote that out. Now compare that to another example, where in the early 1970s, the American people were debating a proposed amendment called the Equal Rights Amendment. The Equal Rights Amendment would have amended the text of the Constitution to add text about men and women in different places where there's only the male pronoun in the Constitution. And there was a robust debate going on in the United States about whether adopting that amendment was a good or bad idea. And by most historians' account, that amendment was on its way to being passed in the appropriate number of state legislatures. And then, if you've had constitutional law, you know that in 1976, in a case called Craig versus Boren, using a non-originalist methodology, the Supreme Court creatively interpreted the Equal Protection Clause to impose heightened scrutiny on gender classifications. So the opponents of the Equal Rights Amendment then went to the remaining state legislatures, including some of the legislatures that had previously adopted the amendment, and said, "Hey, you don't need to adopt the amendment because the Supreme Court has already done the work for us." So the Supreme Court disincentivized a valuable and important debate, democratic debate, that was going on at that time. And so I think you see, in those instances, non-originalism undermining democratic processes. Now compare that to an alternative circumstance. So in the United States in the early 19th century, there were a number of women and men, typically going by the name of suffragettes, who wanted to expand the franchise both on a state level and a national level to include women. And the suffragettes were politically active, they were legally active, and they steadily gained political influence, especially on the state level. The debate continued up until 1920, when the United States adopted the Nineteenth Amendment, which guaranteed all American citizens the right to vote, regardless of one's sex or gender. And compare the response to that, which is Americans, since 1920, have never questioned whether or not there should be barriers to voting based on one's sex. But since 1976, there have been continuing debates over the Equal Rights Amendment. There have been continuing debates over the role of heightened scrutiny for gender classifications. I think what this shows is that the process of coming to constitutional amendments through the democratic process is an incredibly healthy process. It's one in which, despite its vigor, despite maybe even its debate and some negativity that goes on during the time, the American people come to a resolution, put it in the Constitution, and don't look back. But when the Supreme Court intervenes in non-originalist interpretations, it short circuits that democratic process. So I think there is a deep way in which non-originalism both disincentivizes and ultimately undermines democratic processes. Does Originalism always lead to desirable outcomes? Originalism doesn't always lead to good outcomes. There's actually a famous law review article, I think it's from the 1970s, called “The Perfect Constitution,” and it was written by a scholar who looked around at living constitutionalist scholars and the claims that they made about the meaning of the Constitution. And this author said, "It seems like everybody seems to say we all have a perfect Constitution, and originalism clearly does not lead to a perfect constitution." In fact, it's one of the main arguments that critics of originalism lodge against it, that the original interpretation leads to results, leads to conclusions, leads to outcomes that under contemporary ethical, political, or other standards, the critic finds unacceptable. I actually agree with the criticism. I think there are many instances in which the original meaning leads to outcomes that I think are at best imprudent, and in many instances, unjust. For example, Article III gives to federal judges, effectively, lifetime tenure. That may have been a good choice at the beginning of the Republic, where you were trying to establish the independence of the federal judiciary. It may have been a good choice when the average lifespan of American males was approximately 55. It is not a good choice, it's an imprudent choice, when you have federal judges who are appointed at one age and then who stay on the court for the next 30 years. And that has led to the Supreme Court and Supreme Court appointments taking on an undue relevance in what is supposed to be a democratic republic. And so it is clearly the case that the Constitution includes imprudent and unjust provisions. Now, what does that mean for originalism? Does that mean that that's a reason to not utilize originalism? And I don't think that's the case at all. I think that's a category mistake. So let's say that you were to have an email or a letter from a friend, and let's say that... Or who you thought was a friend. And then in the letter, the friend says to you, "You are an," and then spelling out a-hole, so saying something very negative to you. And what would you do in response to that? Would you say that because that's a negative statement about me that, actually, the friend didn't say that negative thing? No. What you'd say is that you read that in the way that it conventionally meant, and you realized that that person you thought was a friend, in fact, was not your friend. And so the meaning of a written text is different than whether or not that written text's meaning is good or bad. And the same thing with the Constitution. The original meaning of the text is different from whether or not that original meaning is good or bad. And so one cannot, one should not say that because the original meaning in this instance is bad, therefore, I reject that as the actual meaning of the document. In fact, I think what the imperfections of originalism, what these bad results lead to, or examples of, is in fact, show that originalism is an authentic theory of interpretation in a way that other theories of interpretation which fail to find, or fail to find with the severity or the frequency, imperfect results that those other purported theories of interpretation, in fact, aren't theories of interpretation. They're theories of creation. And so why is that? It's because that the Constitution was drafted, the Constitution was written, the Constitution was authorized by flesh and blood human beings. And as James Madison said in Federalist 10, flesh and blood human beings sometimes do great things, and sometimes don't do great things. And all of us suffer from the limits of lack of knowledge or limits on our knowledge, all of us suffer from being power hungry, from being blinded by our own prejudices of our own particular time period, and the Constitution reflects the inadequacies and the limits of the American framers and ratifiers. And therefore, like any other human artifact, the fact that the Constitution has limits is evidence of its human createdness. And that originalism's own limits, which reflect the artifacts limits, is evidence that originalism is authentically interpreting the Constitution. So it is clearly the case that originalism leads to, I think, imprudent, and in some instances, unjust results. That's not a reason to reject originalism. That's a reason to say that originalism is an authentic theory of interpretation, and then what's the response? So let's say that you think that there's something that's unjust or something that's imprudent. Well, what that suggests is that Americans revive their civic muscles, that they seek to amend the Constitution, they seek to change state law or federal law within the spheres of the state and federal authority to have a better policy perspective on whatever that issue might be. On that note, is there anything that you wish people knew about Originalism? About when or why it might be practically useful for evaluating policies? Originalism as a theory of interpretation has something to say about every, or almost every hot button issue that Americans face today in a phase for a long period of time, either directly or indirectly. And that's because the constitution in the United States either directly or indirectly provides input on those issues. So one way it does so, that originalism and the constitution do so is by identifying who the relevant decision maker is for an important legal, ethical, or social issue. And that could be the federal Congress, that could be a state legislature, that could be the federal judiciary on a variety of issues. So one of the debates that we have is over the scope of gun rights or gun control, and the constitution has allocated, its original meaning has allocated responsibility among a couple of different aspects of Americans. So one aspect is private Americans. So Americans under the second amendment have an individual right to keep and bear arms. So they get a choice about, do we exercise that and to what degree do we exercise that? But that's coupled with a state and then to a lesser degree, federal control over the exercise of gun rights. So there's some role for state and federal regulation of how the use of guns by citizens in those respective jurisdictions. And that's in turn shared responsibility with the federal and state judiciaries over interpreting the Second Amendment because the federal and state judiciaries also have a role in identifying the scope of the Second Amendment, which then has a feedback loop to, well, what powers do the federal and state legislatures have, which then in turn has a feedback loop to, to what extent can individual citizens exercise the right to keep and bear arms. So originalism doesn't necessarily directly answer the question about how broad should our right to keep and bear arms be, but it does identify three relevant decision makers who all have input and together come up with the conclusion that in our political community identifies the scope of the ability to keep and bear arms. But there are certainly times where originalism directly answers questions. Is it the case that the constitution's Eighth Amendment allows for the death penalty? I think determinatively the death penalty is constitutional under the cruel unusual punishment clause. Does Congress have the power to regulate the interstate purchase and sale of health insurance plans? I think determinatively the commerce clause authorizes Congress to do that. And there's lots of other things that the commerce clause doesn't authorize Congress to do. So for example, does the original meaning authorize Congress to require every American to purchase government approved health insurance the issue edit, in the case of NFIB versus Sebellius? I think the answer is determinatively, no, on that point. So there are a lot of questions that originalism in the constitution directly answer, but even when it doesn't directly answer those questions, it identifies who the relevant decision makers are under our legal system. Thank you for listening to this episode of the No. 86 Lecture series on Property Law. 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