If they are to maintain credibility with those who are not already sold on their views, originalists need to respect the discipline of history.
In the last two posts, I have argued that originalism can comprehend many of the so-called modalities of constitutional interpretation. That is, while some professors, like Pamela Karlan, argue that interpretation can and should be based on many factors, like text, structure, and consequences, originalism takes account of these as well. One major advantage of originalism as opposed to these modalities is that the interpretive legal rules that were applicable at the time of the Constitution discipline the manner of using these factors to arrive at the meaning of our fundamental law. Interpretive modalities as used by Karlan and others tend to make constitutional interpretation a grab bag of factors where the judge picks out whatever factor will lead to a result that accords with his intuition about justice.
The hardest question for the relation of originalism and the modalities is that of consequences to original meaning. My tentative view is that the interpretive rules of the time may well permit the use of consequential reasoning in limited circumstances. Thus, when the original meaning of the text is otherwise unclear and when the consideration of consequences are those that would help determine whether an interpretation advances the provision’s purpose and values, this aid to interpretation should be entertained.
The first step is to recognize that William Blackstone himself said that to clarify a text a judge should take into account the “spirit” of a legal provision. By referencing “spirit,” he essentially meant the purpose. And consequences can be evaluated against the values presupposed by a legal enactment, illuminated by its purpose.
The danger here is not so much that consequences can be taken into account in determining meaning, but that purpose will be read too abstractly, allowing an open-ended consideration of consequences according to the judges’ own values. But originalism addresses this issue as well. Mike Rappaport and I have argued that properly reading the Constitution in the language of the law makes many provisions less abstract. Moreover, in defining what the purpose is, the interpreter should look at the “mischief,” as Chief Justice Marshall observed, that the provision was designed to combat, also making that purpose more concrete.
Recently, originalists are starting to consider more seriously the relevance of consequential reasoning to originalism. Jack Balkin has noted for instance, that in the debate over the bank bill, James Madison argues that interpretation of a provision should be “triable by consequences.” Balkin does not recognize that Madison is a relatively poor guide to the conventional legal interpretive rules of the time, because he was not a lawyer, unlike other Framers and early jurists. Indeed, he was criticized by Elbridge Gerry for being insufficiently conventional in his deployment of rules in the bank speech.
But in a forthcoming article Mike Rappaport and I show that that the consequences Madison takes into account are those given by the text and obvious purpose of the Constitution. Madison argues that if a bank were permitted to be incorporated, the government could incorporate a whole range of institutions, leading to unlimited power. That consequence would be inconsistent with the enumerated powers. Thus, Madison “tries consequences” by considering whether the consequences are consistent with the structure and obvious purpose of the Constitution. Madison thus is best interpreted as offering a theory of interpretation consistent with the limited role that originalism might give to consequences.
Thus, originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices from evaluating those consequences in an open-ended way driven by the justices’ values.