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 Randy E. Barnett, who is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution. 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 the most fundamental question. How do you define “Originalism”? RANDY BARNETT: Here's Originalism in one easy lesson. This is not the law that governs us. This is the law that governs those who govern us, and those who are to be governed by this law are no more able to change it without going through the change process, the amendment process, then we can change the laws that govern us without going through the legislative process. What that means is that the meaning of the Constitution must remain the same until it's properly changed by amendment. The meaning of the text of the Constitution remains the same until it's properly changed by amendment. That is simply a restatement of Originalism. It's the original meaning of the text that governs unless that text is changed by amendment. There are many arguments for why Originalism is the appropriate way of interpreting the Constitution . Perhaps, the most important one, is that of the Rule of Law. That is that the Constitution provides the law that governs those that governs us and, therefore, the only way that law can work as if the people who are to be governed by it can't change it themselves. The way to subject government to the Rule of Law ... How do you subject government to the Rule of Law? There's millions of people, how did the people subject government to the Rule of Law? Well, they do so by adopting a written Constitution that they ratify and then their government actors are to be bound by that. In fact, each and every government actor takes an oath to follow that Constitution . That simply means that the meaning of that text of the Constitution can't be changed by the very people who are to govern it. PUBLIUS: Is Originalism internal or external to the Constitution? RANDY BARNETT: Originalism is bound up in the notion of following writings. In contract law, and the meaning of a written contract is its original meaning. It's the meaning it has at the time of formation, unless it's properly changed by the parties by means of some kind of modification that could be made later on. Originalism is inherent in the idea of following a written text as opposed to changing a written text. Whether or not Originalism leads to good results depends on whether the text that's being followed is a good text. It depends on whether, in particular, the Constitution is a good Constitution . If it's a good Constitution , then following it will lead to good results. If it's a bad Constitution , then following it will not lead to good results. Whether or not you like Originalism is going to depend on whether or not you like the Constitution . It's at this point that people who don't like the Constitution that much start talking about how it was framed or ratified by slaveholders or other people that are somehow not desirable. The very fact that they make that argument suggests that they are undercutting the goodness or the words of the Constitution itself, rather than following it faithfully as it was originally written. We must also keep in mind that whether this Constitution is a good Constitution are not does not depend entirely on whether it was good at the time of the founding. In fact, it might not have been good enough at the time of the founding to be legitimate for the very reason that it allowed certain people to be subordinated and other people to be enslaved. The Constitution that we have today is a Constitution that has been amended. It's been amended by the 13th, 14th, and 15th Amendments. It's that Constitution that we have to ask, is it good enough to merit a duty of obedience? If you think the Constitution, as amended, is a good framework for government, then you want to follow it. If you think the Constitution, as amended, is not a good framework for government, for example, you don't like the fact that each state gets two Senators, for example. When you think that would violate some principle of one man one vote. If you don't think the Constitution is a good framework for government, then obviously you're going to look for ways of "interpreting it" to actually change or avoid its real meaning. Though the theory of Originalism developed from 1980 onward, the practice of Originalism goes all the way back to the founding. PUBLIUS: Would the Founders have considered themselves to be Originalists? RANDY BARNETT: Were the founding fathers, themselves, Originalists? Yes, in so far that they thought the meaning of the text remains the same and till it's properly changed. No, because they would never have used the word originalist. The word originalist was actually invented in 1980 by a law professor named Paul Brest, who wrote an article critical of conservative writers like Raoul Berger. It's Brest the coined the term originalism to describe the views that he was criticizing, that was Raoul Berger and, to some extent, Robert Bork. He then had to construct a theory of Originalism because there really was no theory of Originalism at that point. In his article he did a pretty good job of doing it and then he refuted various versions of Originalism. Some versions of Originalism, he thought were reasonable and acceptable. Versions that are very much like original public meaning Originalism. The term Originalism dates to 1980 and it's only after 1980 that anyone started calling themselves and Originalist. PUBLIUS: Why does it matter what the Founders thought or what language they used? Shouldn’t we be able to interpret the Constitution using our modern perspective? RANDY BARNETT: What about the argument that we should not be bound by the dead hand of the past? Well, I, for one, agree with that argument. I don't think we should be bound by the dead hand of the past. The reason to be an Originalist is because today, we, the living; we, here and now; believe in this Constitution and following the text of this Constitution. The text of this Constitution means what it meant when it was adopted unless it was properly changed since then. For example, the 14th Amendment means what it meant in 1868. The other Amendments mean what they meant when they were adopted. It's because we here today, we, the living, want to be bound or believe we should be bound by a written constitution to provide a law that governs those that govern us that we follow the original meaning of the text. Not because we are bound by the dead hand of the past. One of the misconceptions of Originalism is that we are not only bound by the original meaning of the text of the Constitution, we are also bound by how those who wrote the text would have expected those words to be applied to particular cases and controversies that perhaps had not yet arisen. Originalism does not entail a commitment to original expected applications. It is up to us today to apply the original meaning of the text to new facts and circumstances as they arise. This will result in an evolving constitutional law or doctrine of applications by which we apply the original meaning of the text to new circumstances. It's constitutional law that will then change and evolve, not the meaning of the text itself. If you ask whether you should be an originalist, meaning whether you should follow the original meaning of the Constitution, and the answer is, "Well, yes, if you think the Constitution is a good Constitution," the next question arises, "Well, what makes a Constitution a good Constitution?" That takes us back to the Declaration of Independence, which said that, "All people are endowed with certain inalienable rights, among which are the rights of life, liberty and the pursuit of happiness. These are each individual rights. Then it is to secure these rights that governments are instituted among men deriving their just powers from the consent of the governed." The question is whether the structure that was established by the text of this Constitution is or is not an effective means of securing the rights and liberties of We the People. If you think it is, you want to follow it. If you think it isn't, then you don't. PUBLIUS: You just mentioned a common misunderstanding of Originalism - the assumption that we must comply with the Founders intentions. How did you decide that Originalism could and should mean something else? RANDY BARNETT: I, myself, was not an Originalist because I was persuaded by the objections to Originalism based on what's called framer's intent. According to that approach, you would ask, "What would James Madison do?" in a particular case. Or what I would call channeling the framers. As in, "Oh, framers, is detecting increased heat emanating from a building indicating marijuana cultivation really a search or not?" These were not, of course, historical questions. These are thought experiments, constructs, and it seemed to me that we were not bound by the intentions of the framers anyway. I was persuaded to Originalism by reading a book called, "The Unconstitutionality of Slavery" by Lysander Spooner that was written in 1845 in which Spooner argued that slavery was unconstitutional under the original Constitution because the public meaning of the text of the Constitution did not actually refer to slavery. It used euphemisms like, "Persons held to service," for example, or, "Other persons". Spooner contended that if the Constitution doesn't actually say, "slavery" you're not allowed to go behind the document into the intentions of its framers to impute an evil intent like that of slavery. I thought this was extremely interesting. I'd never heard of this before. I'd never heard of this way of looking at the Constitution before and I decided to pursue it. At the end of the day, I concluded that Spooner was wrong about the original public meaning of the Constitution . That these particular phrases, even though they don't say slavery, taken in context would've been understood by the general public to refer to slavery. If that's the case, then the original public meaning of the text was, in fact, a slavery reading of the text and Spooner was wrong in the particular case. As a general matter, as an approach to interpreting the Constitution , I think Spooner was basically right and, it turns out, so did Justice Scalia. As it happens, Justice Scalia, independently of me, had already moved Originalism from the framer's intent version of Originalism to the original public meaning version of Originalism in the 1980s during the Regan administration when he would talk to lawyers in the Office of Legal Counsel about how Originalism should and should not be done. He urged them to stop talking about framers intent and start talking about original public meaning. It was the original public meaning Original is some that persuaded me to be an Originalist myself. PUBLIUS: So if we want to obey the Constitution, does that mean we have to be Originalists? RANDY BARNETT: Yeah. It does. Look, obeying the Constitution means obeying the text of the Constitution. That means not changing the text of the Constitution to something you like better. The idea that you can't change the Constitution to something you like better is, in fact, being an originalist. That's what originalism is about. Most of the Constitution was written in extremely specific language that's easy to understand. Two senators per state means two senators per state. If you ask a living constitutionalist, "Well, why should each state get two senators when that would violate the fundamental principle of one man, one vote, to allow California to have only two senators and Wyoming and Montana and Idaho, they each get two senators, too," I think they'd be hard-pressed to give you an answer. It's only the original meaning of the text of the Constitution that dictates that each state ... It's only the original meaning of the text of the Constitution that dictates each state gets two senators. Most of the Constitution actually is relatively easy to follow. There are a few key parts of the Constitution, however, that receive a lot of attention because they're more generally worded, like provisions in the Fourteenth Amendment, like the due process clause of the Fifth Amendment, which is actually more specific than merely the due process clause. It's the due process of law clause, which brings me to a separate point. Most of the supposedly abstract in general provisions of the Constitution, which are claimed to be open-ended, so open-ended that following the original meaning of it is not constraining at all, are actually a lot more specific than people normally believe. The open-ended phrases of the Constitution are not necessarily as open-ended as most law professors teach. Most law professors teach this without themselves having done any work on what the original meaning of the text is. PUBLIUS: Why has Originalism become more popular in recent years? RANDY BARNETT: Well, I guess one thing I could say is it takes a theory to beat a theory and at this point originalism is the theory to beat. It's true, there are various varieties of originalism that now exist, but they all agree on the core concept that the meaning of the Constitution is fixed at the time it's enacted and that that meaning constrains constitutional actors today. On the other hand, there are as many varieties of living constitutionalism as there are living constitutionalists. Why? Because the only thing that unifies living constitutionalists is that the original meaning of the text of the Constitution should not be binding and that courts or other constitutional actors can update the text of the constitution to something that's better. How they go about doing that and what they think is better is going to vary depending on the particular person you ask. So when my students ask me, "What is living constitutionalism in opposition to originalism," I have a hard time telling them exactly what it is because I can point them to David Strauss, I can point them to other constitutional theorists, but I can't point them to a single position. Originalism assumes there is an empirical fact and the empirical fact is the meaning of language. The meaning of the words I'm uttering now is an empirical fact. The meaning of the words I'm uttering now do not depend on my subjective views on what meaning is. I'm utilizing a tool that I'm sharing with the people who are watching this video. The tool is the English language, and if I'm using that tool successfully, then the meaning is going to be conveyed from me to you because of this external referent called the English language. Well, the English language also existed at the time the Constitution was enacted. It also existed at the time the 14th amendment was enacted, and discovering the original meaning at that time is the same kind of empirical inquiry as it would be to discover the meaning of the language I'm using now. Of course, the dirty little secret here is that the meaning of language hasn't changed that much. So discovering the original meaning is not some insurmountable challenge because we're trying to discover the meaning of a long dead language. The meaning of these English words has not changed that much and where they have changed, they've changed relatively recently, when there was a political interest in justifying greater government power and therefore words got interpreted creatively. But it is not all that difficult to find the original meaning of the text of the Constitution, provided you look, and a great many people who profess skepticism about their ability to understand the original meaning of the Constitution tend to be people who haven't looked at what the evidence is of original meaning. PUBLIUS: So Originalism can require some effort to find the original meaning of the text. Are there other reasons why people might not want to use Originalism? RANDY BARNETT: There is one downside of being an originalist. And that is it means that you cannot come up with an opinion on constitutionality based solely on what you would like it to be. You actually have to do a certain amount of work to figure out what the original meaning of the text was in context, and that does put the burden on people to know something about what they're talking about before they can express a constitutional opinion. So the way constitutional law classrooms are run is that you get the students debating what results do they like, pro-life, pro-choice, and then, okay, now you must draw the arguments in favor of your side and you must draw the arguments in favor of your side, but you really have to kind of first out yourself as which side are you on in order to muster your arguments. And that's the way they envision constitutional law being practiced. It's the way they teach it. Originalism goes the other way around. Originalism is intended to be a method by which you decide which results are the right results. Not are necessarily the most morally justified results, but which are the results that are actually justified by the Constitution. So you use the methodology to figure out what results are the right ones, rather than you start with the results and then manipulate the methodologies to support the results you've started with. And that's the fundamental different orientation of one versus the other. One way to understand the basic difference between originalism and living constitutionalism is to ask which comes first, the method or the result? The way constitution law is typically taught and oftentimes practiced is that a constitutional decision maker will start with the result and then They will look at all the different factors or methods they can appeal to, whether that is text, or history, or practicality, or precedent. And they would say, well, how can I marshal those arguments to reach what I know to be the right result? That's essentially how living constitutionalism worked. It's not completely unconstrained by these factors, but these factors are weighted and measured in order to yield what the interpreter already knows to be the right result. Originalism comes at it the other way. It actually is advocating a method to tell us what is the right result, and by right result, I don't mean the most morally justified result, or the more desirable policy outcome. I just mean the right result of a particular case in controversy. So first is method, then comes results. So the idea here is to develop a method, original meaning originalism, in which you can identify what is the right result in the particular case in controversy. A right result, regardless of what your politics are. What originalism hopefully provides is an external standard that other people can use to assess whether someone's analysis has been overly influenced by their own priors, by their own biases, by their own desired outcomes. It is a check against our biases. It doesn't eliminate our biases, but it attempts to check, and if it doesn't check us internally, it can be used by other people to check us externally. PUBLIUS: So why would someone want to be an Originalist, if it’s not just a tool to get the “right” results? RANDY BARNETT: Why be an originalist? Well, one reason to be an originalist is if you're not entirely sure what all the right results are. Another reason to be an originalist is because you want to live in a country with other people who may disagree with you about the right results, but you want to have a method by which you can reach agreement at least to what the outcome of a particular case and controversy should be, irrespective of your disagreements about policy or even about morality. Why be an originalist? Because you want to have a Supreme Court in which justices who are appointed by members of the other party are going to reach results that you respect because they, too, are trying in good faith to figure out what the original meaning of the text is, and how to apply it to particular cases, even where you may disagree with the conclusions that they reach. Why be an originalist? Because the structure of the original constitution, as amended, provides for 50 state solutions to complex, difficult, and contentious moral and social problems, and by providing 50 state solutions where people can gravitate to the state that has a preferred package of answers. Why have 50 state solutions? Because with 50 state solutions, individuals can gravitate to places where they're more comfortable, and where we can all live as Americans under one flag, but with 50 different combinations of economic and social policies that will unite us rather than divide us. We are more polarized today than ever because more and more issues have been kicked upstairs to the federal government to be decided on a one-size-fits-all basis. And the more that that happens, the more we have a Hobbesian political war of all against all, when each of us are trying not only to fight to get our preferred policy objectives, but fighting even harder not to lose to the other people's policy objectives, and have to live under the regime of people that we disagree with. That is one of the reasons why we are more contentious today than ever before. The way to de-escalate this war of all against all is to send more of these issues to states, where you can have a diversity of approaches, and people can gravitate to the states where they're the most comfortable, and gravitate away from the states where they're the least comfortable, and that would maximize the amount of happiness that the people as a whole can experience. 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!