It is not clear what it will take for the Left to come up with a compelling response to originalism.
There have been a couple of blog posts on Professor Mary Bilder’s op ed (link no longer available) on Originalism and the Constitution, including one by Larry Solum and one by John McGinnis. I don’t mean to pile on, but there are some important questions that remain to be addressed.
Mary Bilder is an important law professor who is also a legal historian. Her op ed reflects the views of many historians about originalism and therefore I believe it warrants some attention. I should say that I have enjoyed Bilder’s work in the past. Her article on the Corporate Origins of Judicial Review is an excellent one, as is her book on colonial law.
But I disagree with much of what Bilder has to say about originalism. The basics of her argument is that originalists argue for an interpretive method that is inconsistent with the process of the enactment of the Constitution. She writes:
Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it. Yet this vision of the Constitution is far different from what we see when we read the historical sources of that moment. In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.
John McGinnis notes that the Constitution actually was written by a team of elite lawyers. And I would add that the Bill of Rights was written by a team of legislators. But put this to the side.
It is not entirely clear how Bilder believes the Constitution should be interpreted. But she appears to claim that the rush of the drafting process made it too difficult to take the words employed in the Constitution as having overriding importance.
Let me examine each of these claims. First, the original methods approach to constitutional interpretation requires that one interpret the Constitution as using the methods that people at the time would have been employed. Thus, it is wrong to claim that original methods requires that the Constitution be interpreted as a modern technical contract would be, unless that was the method employed at the time (which it probably was not).
Second, Bilder claims that the rush of events suggests that the Constitution should not be interpreted in accordance with its original meaning. But this is also problematic. Even if the Constitution was rushed, how does Bilder think people would have expected the Constitution to be interpreted? They no doubt believed it would have been interpreted as other constitutions (and as statutes of similar length) would have been interpreted. Thus, even if they were rushing, their aim was to produce a document that would make sense in terms of the interpretive rules at the time.
These points are confirmed by early interpreters. For example, John Marshall never says, we can’t interpret the words of the Constitution carefully because the Framers were rushing to get it done and might have overlooked some nuances. Instead, he treats the text as very important, employing rules such as the “rule of construction acknowledged by all that the exceptions from a power mark its extent” – a rule that he employed in Gibbons v. Ogden which requires careful consideration of the words.
Ultimately, the Constitution should be interpreted as people at the time would have interpreted documents of this sort. I’m not sure whether Bilder disagrees with this or simply believes that interpretive methods at the time were more discretionary than originalists typically claim. But if she does disagree with the claim that the Constitution should be interpreted differently than people at the time would have interpreted document of this sort, I would be curious how she believes they should be interpreted (and why that is justified).