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Originalism's New Critics, Part 1: Fixing Fixity

By: Ilan Wurman
January 16, 2019

rett Kavanaugh’s ascension to the United States Supreme Court is sure to thrust originalism center stage in the debates over constitutional interpretation. Two well-timed new books—Jonathan Gienapp’s The Second Creation: Fixing the American Constitution in the Founding Era and Eric Segall’s Originalism as Faith—challenge originalism’s legitimacy and coherence. But though they present some new evidence and arguments, both books essentially resurrect two older, and still unconvincing, critiques.

When H. Jefferson Powell’s law review article, “The Original Understanding of Original Intent,” appeared in 1985 it was considered a fatal blow to originalism. Powell argued that the founders didn’t think their intentions should govern in the future, and therefore a method of constitutional interpretation privileging such intent was self-refuting. Powell’s article is still cited for the proposition that because the founders were not originalists, originalism refutes originalism.

Yet originalism overcame this attack. Today, originalism means we are bound by the original meaning of the Constitution’s text, not by any secret intentions of the framers. Of course, the framers’ intent is good evidence of what the text means; after all, most people deploy words to accomplish specific objectives. Thus the historical practices of earlier times are also evidence of the text’s meaning. But such intent and practices are not dispositive. Under this version of originalism, all of the founders were originalists. Even the nonoriginalist professor Segall (whose book I will review in the second installment of this essay) acknowledges that the founders “viewed constitutional interpretation ‘as an exercise in the traditional legal activity of construing a written instrument’ and thought that the usual ‘methods of statutory construction’ would be used by judges in constitutional cases.” For this proposition he cites Powell, who acknowledged that the founders expected the Constitution to be interpreted the way all legal texts are interpreted.

Jonathan Gienapp, in The Second Creation, doesn’t dispute that the founding generation expected constitutional meaning to be fixed over time and interpreted with the usual modes of statutory construction. Gienapp, an assistant professor of history at Stanford University, instead argues that the founders only came to this view some years after the Constitution’s ratification in 1788. Although by the mid-1790s members of the founding generation came to believe that the Constitution’s meaning would be fixed, it did not have to be this way. If we are originalists all the way down, then we must look to the very moment of founding; and, at that time, whether the Constitution’s meaning would be fixed, and whether it would be confined to its words, were widely contested and contingent propositions. And if they were contingent then, they are contingent now.

Even if this description of events were true, I am not so sure it poses a serious challenge to originalism. Written constitutions, after all, were novelties, and it is to be expected that some founders in the 1770s and early 1780s couldn’t see the inherent differences between written and unwritten constitutions. Bernard Bailyn has noted, for example, that James Otis—whose writings feature prominently in Gienapp’s book—never satisfactorily resolved the differences between the new and old constitutional orders. But Gienapp provides very little evidence of a lack of clarity after 1787 on the distinction between the old constitutional order and a written constitution superior and antecedent to ordinary law.

Gienapp also fails to show that the nature of the written Constitution and the role its words would play in limiting its content were contested. Early on he correctly observes that the founding generation often remarked upon language’s inherent ambiguity and imprecision, and from this he determines that the founders were greatly skeptical that the Constitution could ever be confined to its words. The bulk of his book then consists in surveying various debates in the early Congresses about the Constitution’s meaning. From these lower-order debates over meaning, Gienapp detects higher-order disagreement over the Constitution’s nature. He concludes that a “pervasive set of assumptions” has heretofore “infect[ed] constitutional study”—namely the assumptions that “the Constitution is fundamentally a written text,” and that it is “a conventional species of law.” At its inception, says Gienapp, “the Constitution was neither of these things in any clear or definitive sense.”

The most famous founding statement of language’s inherent ambiguity and imprecision comes from James Madison in Federalist 37: “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” From statements such as these Gienapp believes Madison “denigrated the very idea that language, however lucid, could enforce constitutional barriers.”

More important than the Constitution’s words is the government’s structure, the empowering of “the right kinds of counterforces.” It is not enough to delineate power “on paper”; according to Gienapp, “[r]educing constitutionalism to the mode through which it was written reflected a misunderstanding of the tasks inherent to such a project.” Constitutionalism “meant balancing powers and interests,” not “policing linguistic barriers.” Gienapp concludes that Madison “openly disparaged” the use of “constitutional language.” Other founders similarly worried about “a mere paper security” sought to “construe the object they were constructing in avowedly nontextual ways.” It is deeply misguided, writes Gienapp, “to assume that a constitution could ever by reduced to its language, that its constituent powers could be established via ‘paper discriminations.’”

These observations miss the mark. True, the framers were concerned about mere “parchment barriers.” They believed a mere declaration of rights or limits on power was insufficient to enforce such rights and limits because words could too easily be ignored by those in power. As the late Justice Scalia was fond of saying, any tinpot dictator can have a bill of rights. What really matters is the Constitution’s structure, the checks and balances and separation of powers that ensure, as Madison writes, that “ambition [is] made to counteract ambition.” But what creates this structure—this separation of powers? The words of the Constitution. If words were so imprecise and meaningless, and the Constitution were not confined to its words, then the separation of powers itself would be meaningless.

The First Congress had to establish much of the federal government and interpret the Constitution in practice. Examining the “silences” in the Constitution that the First Congress had to “flesh out,” Gienapp argues that several Congressmen, including many framers, believed the Constitution was “necessarily incomplete.” Congress had “to build upon the instrument.” The Convention had “merely laid a foundation upon which subsequent constitutional laborers would build” through “additional creative constitutional work.”

The first practical constitutional question concerned the removal of executive officers. The Constitution explicitly provides the method of appointment: principal officers must be appointed by the President by and with the advice and consent of the Senate. Could the President only remove these officers with senatorial advice and consent, or could he remove them on his own? Was it up to Congress either to confer or withhold this power when establishing the particular office at hand?

Madison and others argued that the removal power was constitutionally vested in the President, even though nothing in the Constitution spoke specifically to the removal power. Antifederalists generally argued that the power didn’t exist for that very reason (there was always impeachment); that the Senate should have a say in removal because the power to remove is incident to the power to appoint; or that Congress retained discretion to grant the removal power to the President or to the President and the Senate together. Based on Madison’s arguments and those of his fellow representatives who supported a presidential removal power, Gienapp writes that “Madison and removal proponents had long been insisting” that “it was foolish to try to reduce the Constitution to the language in which it was written.” Gienapp believes that Madison never resolved whether the Constitution “end[ed] at the text’s edge or spread out far beyond it.”

The removal power debate, however, revolved around the meaning of the Constitution, not about its nature. The Constitution doesn’t explicitly mention the removal power, true enough; but that does not mean that, as a matter of textual interpretation, the removal power does not exist. Madison argued the power belonged to the President as a matter of the Constitution’s text. How did he reach that conclusion? By the very structure of Article II. Unlike Article I, which gives Congress only the legislative power “herein granted,” Article II vests “the executive power” in the President. This vesting of executive power is subsequently limited by other parts of the constitutional text. For example, Congress is given the power to declare war and issue letters of marque and reprisal (two historically executive powers), and the Senate is given a share in the appointment and treaty powers through advice and consent. If removal is an “executive power” not otherwise limited in the Constitution’s text, then it is “vested” in the President.

Don’t take my word for it—take Madison’s: “The Constitution affirms, that the Executive power shall be vested in the President. Are there exceptions to this proposition?  Yes, there are.  The Constitution says, that in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers. Have we a right to extend this exception?  I believe not.” As an executive power—“if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the law,” Madison said—the removal power must be vested in the President because it is not elsewhere restricted in the Constitution.

Other Congressmen disputed Madison’s interpretation. But that does not make Madison’s interpretation any less an interpretation of the Constitution’s text. This lower-order dispute about the Constitution’s meaning does not, as Gienapp believes, suggest a higher-order dispute about its nature. It suggests nothing more nor less than the simple fact that sometimes the Constitution would have to be carefully examined and interpreted because the framers did not expressly provide for every situation. The Constitution is the sum total of its text and the preexisting concepts to which the text referred. To the extent there was other law out there, that other law could not trump the fair and reasonable constructions—that is, interpretations—of the Constitution’s words.