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The New Old Originalism?

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books and culture

The New Old Originalism?

A legal scholar argues for resuscitating the search for original intent. December 30, 2021
Politics and law

The Hollow Core of Constitutional Theory: Why We Need the Framers, by Donald L. Drakeman (Cambridge University Press, 248 pp., $32)

Donald L. Drakeman’s 2020 book, The Hollow Core of Constitutional Theory, cuts against the grain of both liberal and modern originalist jurisprudence. Drakeman offers a practical and theoretical justification for why constitutional interpretation must consult the Founders’ intentions when interpreting the U.S. Constitution and rejects an interpretive approach that changes with the winds of modern times.

“Intent” has become a dirty word in constitutional-theory circles. Some liberal scholars view the Constitution as a document that should be reinterpreted to account for changes in society, while others, such as Ronald Dworkin, hold that the Constitution contains abstract principles grounded in morality that must be assessed through “judgments of political theory.” In neither case do the intentions of eighteenth-century men come into play. What may be more surprising is that today’s originalists don’t regard their mission as a search for the intent of the Founders, either. As law professor Keith Whittington has written, the “new originalism” that rose to prominence after the 1980s “is focused less on the concrete intentions of individual drafters of constitutional texts than on the public meaning of the text that was adopted.” According to Drakeman, conservative legal scholars, including Antonin Scalia, embraced the public-meaning method—sometimes identified with textualism—as original-intent jurisprudence came under attack from both sides of the political spectrum in the mid-1980s.

Drakeman finds this shift unfortunate, arguing both that the objections to original-intent jurisprudence are mistaken and that a search for original public meaning runs headlong into many of them. Discussing the book on the Law and Liberty podcast, Drakeman said that arguments about “what the words might’ve meant, what the words should mean, what we’d like the words to mean” form the titular “hollow core” of contemporary originalist and liberal approaches. Instead, “what we really should have been looking for all these years” is the “intentions of the lawmaker, what the lawmaker was trying to do, why the lawmaker was trying to do that.”

How can judges discern the original intent of a lawmaker when the Constitution had several authors and many more ratifiers, each with different goals, ideas, and intentions? Drakeman’s answer to this “many myndes” problem begins by stipulating that the Framers who wrote the legal text and established the process of ratification for the Constitution—not those who ratified the text into law—should be considered the primary lawmakers. The Constitution, he writes, is a combination of well-reasoned decisions and negotiated compromises. According to Richard Eskins, legislative history—floor debates, convention papers, original speeches—can be a helpful method of ascertaining the intent of the lawmaker, especially as it pertained to the back-and-forth bargaining process of lawmaking and what the Framers actually understood a constitutional provision to mean.

Drakeman points to the works of English legal scholars William Blackstone and Lord Edward Coke, both of whom focused on discerning the intention of the lawmaker when interpreting the meaning of a given law. Blackstone pointed to multiple signs for signaling a lawmaker’s intent, one of which—the words in “their usual and most known signification”—has inspired original-public-meaning originalists.

Opponents of “living constitutionalism” often note that the interpretive approach emerged a century or more after the time of the Framers. And opponents of original-intent jurisprudence sometimes marshal evidence that some Framers rejected the notion of adherence to a lawmaker’s intent, in that they did not deem their own intentions to be permissible tools for interpreting the law. Drakeman reminds us that judges and legal commentators of the Founding era were not singularly devoted to any one method of interpretation. Some, like Thomas Jefferson, argued that the Constitution should be updated every 19 years after it “naturally expires” and reinterpreted to fit with the customs of a new generation, thus avoiding the “dead-hand problem” of past political figures binding those living in the present. By contrast, men like William Blackstone advocated for an interpretation that examines the lawmaker’s intent in a legally authoritative document and applies it to solve the case at hand.

Drakeman points out that the Framers actually incorporated methods of applying the text of the Constitution to address unforeseeable circumstances. Here, Drakeman endorses the notion of “updating” as distinct from noninterpretive judicial policymaking, where justices or judges render a decision solely based on their personal policy preferences. Updating is instead “a matter of considering the new facts in light of the lawmaker’s original design and rationale.” Two methods of judicial updating exist: the first is to apply old answers to evolved forms of the question in light of revolutionary changes in new technology or societal customs. The second is to decide if societal views toward the issue at hand have shifted enough from the original public meaning during the time of enactment, so as to warrant different results—even if the activities in question have not changed substantially from earlier times.

Drakeman endorses a view of updating established in the United Kingdom, developed by thoughtful judges inspired by the writings of Blackstone and Coke, two prevailing proponents of original-intent interpretation. The English view of updating, inspired by former Member of Parliament William Wilberforce, follows a four-part test requiring that the reviewing judges explain their reasoning in light of questions surrounding the lawmakers’ original decision, the facts known at the time, how circumstances have changed, and whether the language used by the lawmaker indicated a more expansive or restricted interpretation of the text. Drakeman is confident that these criteria can be equally applicable for updating cases involving the U.S. Constitution.

Drakeman turns common objections to original-intent jurisprudence on their head, applying them to the interpretive method that supplanted it on the right. The “summing problem”—where a single intention is difficult to ascertain among the Framers’ “many myndes”—poses a serious challenge to original-public-meaning jurisprudence, as does the “semantic summing problem,” when competing potential meanings exist for constitutional words or passages. Judges have moved away from the process of searching through various dictionaries, floor debates, and statutes, and now search for the original meaning of a law through thousands of relevant legal texts catalogued in extensive online databases. But this data-driven approach of “corpus linguistics” can’t resolve ambiguities or issues of constitutional interpretation, Drakeman maintains.

Corpus linguistics researchers (typically law professors) strive to identify the meaning of a word as used in the Constitution by assessing how it was applied in different contexts: sermons, books, or newspaper articles in the eighteenth century, for example. When a word possesses two or more potential meanings, scholars either label it irreducibly ambiguous and consequently devoid of original meaning, or they focus on the meaning of the word that appears most frequently in a dataset (using the “frequency thesis”). Drakeman rejects the frequency thesis, arguing that the intent of lawmakers, in addition to their recorded debates, arguments, and speeches, remains the best way for courts to understand a legal text.

But how is that intent to be discerned? Original-intent jurisprudence can solve the semantic-summing problem, Drakeman maintains, by interpreting the Framers’ choices via constitutional debates during the time of ratification. Floor debates on complex constitutional issues provide clues of the Framers’ intent, helping interpreters decipher which of the competing arguments stands for the original meaning of the examined law. Such information was readily accessible to the ratifiers and members of the general public. Drakeman suggests that by uncovering the Framers’ policy intention at the time through examined floor debates, drafting history, and recorded decisions on the final form of the constitutional text, we can gain insight into whether and how a provision can be updated to apply to changing times. This approach is in line with Drakeman’s overarching goal in the book: to show how the search for the Framers’ intentions lies at the heart of what it means to interpret a legally authoritative text.

Finally, Drakeman answers practical and political objections to original-intent jurisprudence. These obstacles include what Richard Fallon terms “sociological legitimacy,” in which justices are concerned with how the general public and judges in other countries perceive their adherence to originalism. Meantime, some comparative-law scholars allege that the notion of original intent is merely a cover for conservative politicking on the bench. Drakeman disproves both assumptions, pointing to evidence that justifies bipartisan support for abiding by the Framers’ intentions as the core constitutional theory of interpretation. Original-intent originalism appears to have gained popularity in the U.K. and Canada, in addition to being increasingly cited by legal scholars in the United States.

The central focus of Drakeman’s work has been to explain the importance of interpreting and applying a “legally authoritative text for many generations, and to show how that traditional definition of interpretation maps onto the creation and interpretation of the U.S. Constitution.” Central to the various forms of constitutional interpretation, he writes, is a need to determine the will of the lawmaker, properly understood. The Framers incorporated certain provisions in the Constitution not only for the purpose of deriving original meaning but also to apply an eighteenth-century legal document to address unforeseen future problems and circumstances. Drakeman’s book holds that the neglected question of original intent remains the best means of figuring out what the Constitution is supposed to do.

Photo by Alexi Rosenfeld/Getty Images


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