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Defining Original Understanding

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Shag from Brookline says:

    I don’t have a solution. But consider this from Jack Balkin’s recent paper “Why Are Americans Originalist?” @ part VI “Originalism and Nationalism”:

    “Defenders of originalism sometimes argue that originalism is required by the democracy, the rule of law, or constitutional fidelity. If that were so, we would expect to see originalism adopted around the world, which it is not. Perhaps equally importantly, we would expect to see originalism as the dominant practice in the interpretation of the fifty American state constitutions. Yet if we examine interpretive practices involving state constitutions we find that originalism has relatively little influence.”

    Balkin goes on in detail in part VI to back this up. Perhaps such legislation might be evidence as to the meaning of the text of the Amendment without emphasizing “original understanding” at least in the context of originalism.

  2. Joe says:

    The issues come up less, but there are “originaiist” issues for post-Reconstruction Amendments, but when the term is used, the “framers” or “founders” referenced usually are those back in 1787. Not even those from 1868 much of the time. One instance that comes to mind is when there was a case involving proper regulation of out of state alcohol sales. Justice Stevens, who was the only justice actually alive at the time, dissented and noted a bit about the original understanding. He also talked about it in his dissent in the “Bong Hits for Jesus” case.

  3. Jordan says:

    “originalism” was opposed by the originals (e.g., Founders and Framers), especially regarding the “dead hand” of the dead (e.g., very old Acts of Parliament). I recall Tom Paine affirming that the dead cannot bind the living, that authority comes from the living. Of course, it cannot be fully “democratic’ to ignore the living.

    • Joe says:

      There is probably no “one” view by the originals except in some bland generalized sense but this very well matches the apparent mind-set of a good number of them. The answer of some is that the correct approach there is to amend the Constitution but that is not the only way to do it. A ‘common law’ approach where the text is applied case by case over the years with new understandings of the facts (e.g., what is truly “equal”) affirms the principle too. The text stays there but the living determines its specific meaning.

  4. Brett Bellmore says:

    But non-originalism isn’t about empowering “the living”, it’s about empowering a small and specific fraction of “the living”. By taking away the power of the people to refuse ratification to amendments, it centralizes in the federal government the power to change the Constitution.

    A few hundred people get empowered, everybody else gets cut out of the loop. That’s the problem with originalism, for living constitutionalists: The people are permitted an opportunity to say “No!”.

    • Joe says:

      If the “original” understanding was to a common law application of the text of the Constitution, it is “originalist” to use the so-called “living” constitution approach.

      Also, the “fraction” being referenced here are specifically judges who interpret the law applied to everyone else in a certain way. This allows everyone, not just a small fraction, to live under the Constitution via current understanding of its terms. These judges are not picked ultimately by a “small fraction” but by the voters — the voters elect the President, who nominates them; the voters elect the senators who confirm them.

      The voters, not a “few hundred people,” repeatedly have shown by their actions that this is the approach they want. This includes state courts that interpret their own and the federal constitution in a certain way that some would find non-originalist. This sort of makes the “centralization” stuff a bit unconvincing.

      Finally, the people have the power to ratify amendments. They show little desire to actually do so by the necessary number. The people have the power to say “no.” Also, when “originalism” STOPS the people from doing something that turns out to in no way compelled by the document except by a questionable reading of what the “original intent” is, of course, “the people” are blocked by a few judges too & Brett et. al. is okay with it. So, again, this concern for “taking away the power of the people” is far from convincing.

  5. Shag from Brookline says:

    Perhaps Brett is in need of a hearing aid as “the people” do not speak with one voice. Brett of course as a person has the right to say “No.” But his voice may not be heard by many others. Unless the founders, framers and ratifiers had zombies in mind, clearly “the people” are the living.

  6. prometheefeu says:

    From an originalist POV, the understanding of the legislature isn’t relevant. What is relevant is the way members of the public would understand the text of the amendment. I think the statute in question helps because the legislature is at least somewhat representative of the public and so this helps us understand the way the amendment is understood. (Of course this only matters if there is ambiguity in the text to start with)

    I think the more interesting puzzle is die to the time between the legislatures passing the amendment and the referendum. What is our reference point for determining the meaning of the amendment? I think the first legislature passing the amendment is the proper time. The reason for that is that the first legislature has no opportunity to revert its vote if the meaning changes. If “Ban same-sex-marriage” starts to mean “Mandate duck hunting” it would not make sense for the legislature’s vote to be read using a lens which did not exist at the time.

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