In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant "public meaning" originalism, this book seeks to revive the importance of the framers' intent in constitutional theory and interpretation.
Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.
- Donald L. Drakeman, Distinguished Research Professor, Program in Constitutional Studies, University of Notre Dame
- Prof. Lawrence B. Solum, William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law, University of Virginia School of Law
- Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
- Moderator: Hon. Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Nick Marr: Well welcome, everyone, to this Federalist Society virtual event. Today, April 15, 2021, we're having a discussion on constitutional interpretation and a new book, titled The Hollow Core of constitutional Theory: Why We Need the Framers. I’m Nick Marr, Assistant Director of Practice Groups at The Federalist Society.
As always, please note that expressions of opinion on our call today are those of the experts.
Two quick notes for the audience before some more brief introductions. One, if you'd like to order this book, you can visit the Cambridge University Press website and enter the code THCCT2021, and that'll be sent out in the chat. That's for attendees of this panel. Two, we'll be looking to you for questions towards the end of the hour, so please submit your questions via chat as we go along, and we'll be monitoring those. We'll pick those out towards the end.
Okay. Logistics out of the way. I will now introduce our moderator before she takes the program away. We're very pleased to be joined this afternoon by the Honorable Britt Grant, who serves on the U.S. Court of Appeals for the Eleventh Circuit. She was appointed to the federal bench in 2018 after serving as a justice on the Supreme Court of Georgia and as Georgia's Solicitor General. Her longer bio is available on the FedSoc website. With that, thanks very much for being with us today. Judge Grant, the floor is yours.
Hon. Britt Grant: Thanks very much. It's my pleasure. There's an exciting new book, but before we start our substantive discussion, I'd like to introduce our panelists. First is Don Drakeman, our author, who is also a Distinguished Research Professor in the Program in constitutional Studies at the University of Notre Dame. He's the author of seven books and his writings have been cited by the Supreme Court of the United States and the Philippines. Professor Drakeman earned his JD from Columbia University and a PhD from Princeton University. Welcome.
Next will be Professor Lawrence Solum, who's the William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law and Douglas D. Drysdale Research Professor of Law at the University of Virginia School of Law. A leading constitutional theorist who has written widely on originalism, Professor Solum earned his JD from Harvard Law School and clerked for Judge William Norris on the Ninth Circuit.
Professor Keith Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. Professor Whittington earned his PhD in political science from Yale and is the author of several groundbreaking books including his 1999 work entitled constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review.
We are so fortunate to have these three great scholars of originalism here to discuss Professor Drakeman's book, and with that I will let Professor Drakeman take it away.
Prof. Don Drakeman: Super. Thanks so much, Judge Grant. Thank you to the panelists and all you who are taking time out of your day to listen to this discussion. Please do come in with questions later on.
My basic point here is that for basically all of western legal history, identifying the will of the lawmaker has been the core of interpretation. But for the past 50 years, constitutional theory has largely forgotten about the framers. Instead the arguments revolve on the one side around original public meaning and on the other a host of living common sense, consequentialist, moral, or pragmatic alternatives.
If you look back at the history, it's really remarkably clear. Look at Koch back in the 1600s summarizing what was then already a long tradition, "Every statute ought to be expounded according to the intent of them that made it." Blackstone said basically the same thing as did framer James Wilson, Justice Joseph Story and basically just about everybody else writing about constitutional and statutory interpretation until about the 20th century. That was the law then for nigh on 20 centuries. What happened?
Well, several things or quite a few different things actually happened: legal realism, the growth of the living constitution and Justice Brennan, Justice Scalia's focus on textualism, the common law case method in the law schools. We can point in a lot of directions, but even among originalists, what used to be called the jurisprudence of original intent in the Regan administration has now given way largely, not completely, but the trajectory of many of the current originalist theorists is away from the framers and toward semantic meaning.
Now, why is that and what's going on? Well, just about everybody—and this is originalists as well as living constitutionalists and everybody else—seem to agree that the framers' intentions are some combination of unknowable and, in any event, irrelevant. And since everybody has bought into what John Mannings called intense skepticism, we haven't given enough thought into why the framers' were jettisoned, why we've lost what was the core of interpretation for all those centuries. That's really the project of my book.
Now, a couple of quick things, you'll say what a minute, Article Seven settles this. The ratifiers made the Constitution into law, and so we don't really have good records from the ratification conventions. That leaves us with the public meaning. There's not much left. This issue's really a red herring. I think it's terrific. It's actually one of legal history's great misdirects. This is a Wizard of Ozian, pay no attention to the framers behind the curtain move by the Convention.
So, if you look at the constitutional Convention, its sole purpose under the Articles was to amend the Articles of the Confederation, and any amendment that they came up with was required to be approved by all of the state legislatures. But that's not what they did. They came up with an entirely new Constitution and instead of submitting it to the legislatures, they came up with Article Seven, this brand new idea of ratification, and that ratification would be done in conventions, not legislatures, and it would be good if only nine approved it. So this is the framers bootstrapping their way into a whole new constitutional order, and it became law partially because they said so and partially because we've accepted the fact that they said so over all these years.
So then the second big complaint about the framers' intentions is what's often called a summing problem. How can dozens of framers all have the same intent? And the answer is that intent maybe a little bit of a misnomer. What interpreters have always looked for is the end-means decision. What was the final choice by the lawmaker about what they were trying to accomplish and how they were trying to accomplish it?
All of the framers, whether they came in with similar ideas or very different ideas, by the time it got to a final vote on a provision, knew what that provision was meant to do and how it would do it. They may have agreed with it. They may have disagreed with it. But they knew what it was. What we're looking for is what they knew it was.
So note that this is not necessarily an argument for framers' expected applications. It could be. It might not be. Whether the framers meant for it their own idea of how to apply a law to be perpetually used in the future is a question we should ask of the record not assume going in in advance.
Lawyers in the founding era, interestingly, were well aware of dynamic and updating types of interpretations. We can see them doing it when they invoke the Magna Carta to support the patriot cause, for example. So the key to dynamic approaches and when they're appropriate is to identify the will as a lawmaker. Then you look at the nature of the changing circumstance, and you say, "Can we apply the will of the lawmaker to the changing circumstances in a way that's consistent with the framers' original choices?"
Finally, the lament that the justices of the Supreme Court are really just making things up is usually what we said in the past to things that we disagreed with. But over the last generation, there have been a group of constitutional theorists who have said that the Court is a policy maker, should be a policy maker, and that all of the traditional language of interpretation can simply be used as a good cover story after the fact to give legitimacy to a decision made out of the grounds.
I think that's a bad idea. Truth telling is an important value in our legal system, and we should expect judges to lead the way and tell the truth. So if they're going to act like policy makers, they should talk like policy makers and explain their decisions as just basic policy decisions. You made one law. We like this other law better. And then the other branches of government and of Keith Whittington's new commission can decide on exactly what the proper role of the Supreme Court should be in 21st century America.
Thanks very much for taking the time today to talk about this book.
Hon. Britt Grant: Thanks very much. Professor Whittington, I believe you're next [crosstalk 10:11].
Prof. Keith Whittington: Professor Solum is next.
Hon. Britt Grant: Professor Solum. Thank you for that. Professor Solum.
Prof. Lawrence Solum: Thank you. And I have some slides. This is a wonderful book, and I urge everyone in the audience who's interested in constitutional theory to read the book. I think my job, though, is to offer some criticism. So that's what I'm going to do.
So are we really going back to the future original intentions again? Well, I want to just start by framing this. The modern origins of the move from original intentions to original public meaning are strongly associate with Justice Scalia who had been critical of congressional intent as an approach to statutory interpretation. He largely won. But there are a lot of myths about what public meaning originalism and textualism is all about. Some people argue that this must be literal meaning or bare semantic meaning. That's just a distortion.
The reality is that public meaning originalism embraces context. The public meaning of the constitutional text is the communicative content delivered by the text given the public available context of constitutional communication.
In the determination of original meaning, evidence of intentions plays a role. Evidence of original intentions is relevant evidence of the public meaning of the words, but it is the public meaning and not the psychological states of the framers, the intentions of the framers, that is binding.
There are three different theories of original intent that play a role in contemporary constitutional discourse. One of those is the idea of original intent as the will of the framers with respect to constitutional issues. I could call that framers' preference originalism. And I believe that this is Drakeman's bottom line view. He frames that view in terms of a means-ends relationship, but the choice of means and the choice of ends are framers' preferences.
Second view, original intent is the communicative intentions of the framers. This is framers' meaning originalism. This is the version of original intentions originalism that emphasizes the idea that the framers had intended meaning for the words, and that that intended meaning is what's determinative. Usually this view is based on a philosophical theory, Paul Grice's Theory of linguistic communication. It's sometimes called the new intentionalism. It's discussed in Drakeman's book. Larry Alexander and Jeff Goldsworthy are leading proponents.
And then there's a third version of original intentions originalism that associates original intent with the original objective purpose of the constitutional provision. This is Richard Ekins's view, and it is developed out of a philosophical view about meaning that's associate with Ekins's mentor, the moral philosopher and legal philosopher John Finnis.
So objective purposes, the purpose that a good legislature would have had in passing a statute is quite different than either the meaning, the communicative content intended by the framers, and the subjective will of the framers as concrete individuals with mental states.
These three theories are fundamentally incompatible with each other. You have to choose. You can't embrace all three. They rely on entirely different premises and are associated with different views about what should determine constitutional outcomes.
So let's talk about the summing problem. So summing problem number one, the traditional summing problem with framers' preferences. The constitutional preferences of the framers on many not necessarily all constitutional issues are going to differ. And here I just think that Professor Drakeman has it wrong. The framers disagreed with respect to many constitutional provisions both as to what the goal was and as to what means they had chosen. There are many notorious examples, but the necessary and proper clauses, I think, are a particularly clear and important example.
Drakeman, to solve the summing problems, invokes the group agent solution discussed by Ekins, and Ekins in term relies on the philosopher Philip Pettit and his co-author, Christian List, who I think argue very persuasively that a group agent can act intentionally via the rules that structure it's processes. But the problem is that this solution can't do the work that Drakeman needs. The relevant group intentions are thin because the processes that structure the convention are thin, and therefore whereas constitutional preferences are thick, there's a mismatch here. Ekins, to solve this problem, relies on objective purpose, but Drakeman rejects that approach and thereby undercuts the solution that he relies on to attempt to vanquish the summing problem.
What about the second summing problem, semantic summing, which Professor Drakeman discusses. He points to semantic ambiguity here, the fact that there were different semantic meanings for words and phrases in the Constitution. Public meaning originalism maintains that in almost all cases, semantic ambiguity can be liquidated by context. Drakeman invokes context to show the intended meaning on his account of original intentions. But if this context is publicly available, it is exactly the way public meaning originalism solves the problem of ambiguity, and it's liquidated by context. And if some cases of irreducible ambiguity are fatal, and this is the way Drakeman's argument works, then framers' preference originalism fails, as well, because of course there are ambiguities about purpose.
So in actual cases of irreducible ambiguity to the extent there are such cases, we're in a construction zone, and the solution is a theory of constitutional construction. I have a lot more I would love to say, but I am out of time, so I will stop now.
Hon. Britt Grant: Thank you. Very interesting to hear this pieces of pushback. Professor Whittington.
Prof. Keith Whittington: Thank you and I appreciate Professor Drakeman for the book, which is very interesting and useful, and, I think, well worth checking out if you have any interest these kind of problems at all. I think Professor Solum did lay on the table some of the important concerns.
One of the striking things about the book as a contribution to our ongoing thinking about originalism in particular, let alone constitutional interpretation more generally, is it is an effort to revive to some degree this intentionalist emphasis in originalism. As Professor Solum emphasized there are other intentionalist schools of thought out there, others who continue to emphasize the significance of the framers' intentions for an originalist project. But Professor Drakeman does add to that a somewhat different approach to thinking about it and more of a sort of a general emphasis on the significance of thinking about intentions.
As the Drakeman book highlights and Solum's comments suggest, we have been shifting away, generally, from that kind of emphasis on framers' intentions over the last several years with a much greater attention to the public meaning of the text in recent constitutional theory. I've often thought that we wind up overemphasizing the division between intentionalism and public meaning as we've approached this.
Intentions, or what was traditionally viewed as intentions, are often helpful for thinking about these problems even from an original public meaning perspective. And as Professor Solum emphasized, that's partially true because intentions are part of how we get at the context in which words are being use. And context is crucial to thinking about the meaning of the constitutional text from an original public meaning perspective, that we need to understand not only what the words might mean in a dictionary semantic context but also what the words meant in the specific context in which they were being adopted by a specific set of lawmakers in a specific historical moment undertaking a specific historical project. And the kind of evidence that we think of from a constitutional intentions perspective is part of the evidence that we would want to turn to for any kind of originalist perspective, I think, in order to make sense of that constitutional text.
So I value, then, this emphasis on paying attention to intentions that Professor Drakeman would want to emphasize. The question in part is does that mean that we need to transition all the way to a primarily intentionalist approach to thinking about these issues, and should we abandon particular aspects of public meaning?
I don't think the book gives us good reasons to think that we ought to move away from the kind of public meaning approach that many originalists would emphasize in general. There may be lots of ways of ultimately reconciling part of what Professor Drakeman's concerned with and what originalists form the public meaning perspective might want to highlight.
One of the concerns for public meaning originalists is that the exclusive focus on intentions will introduce more ambiguity and more uncertainty about what the meaning of the Constitution is than thinking about public meaning more generally. Professor Drakeman spends a fair amount of time in the book trying to address what was traditionally characterized as this summing problem. How do we deal with the potential ambiguities that might be embodied in the fact that you have lots of different framers with somewhat different views expressing themselves in the context of the Philadelphia Convention, likewise ratifiers and the ratification conventions. How do we reconcile these competing views?
That is a particular challenge from the intentionalist perspective, and one virtue of the original public meaning approach is it does reduce some of those challenges by on intention less on to what to degree can we add up the specific preferences by particular authors and instead think about what's the meaning of the text that they wound up agreeing on. Part of the virtue of shifting to give greater attention to the public meaning approach is its emphasis on the extent to which sometimes the specific choices being made by the founders is to adopt sets of principles or rules. And one of the traditional problems of a lot of the intentionalist approaches, or at least that advocates of intentionalist approaches tended to emphasize, was a great deal of attention to the very concrete policies that might follow from the adoption of specific constitutional texts sometimes expressed in terms of a problem of expected applications.
One thing Professor Drakeman wants to emphasize is that we should not feel ourselves to be wedded to expected applications even if we adopt the intentionalist approach. He wants to provide some space for thinking that the founders might have been wrong about some of their expectations about how particular applications would play out, or that they might have understanding that their expected applications might not carry through in practice, especially to the extent the circumstances change over time.
He wants to cabin that a little bit by connecting it to the particular context in which they're adopting this. And so some of the question is a historical one of to what degree did the framers themselves expect that their expected applications would not be binding on future interpreters attempting to apply their rules. That might reduce the space to some degree between this more intentionalist approach and traditional public meaning approaches.
But one thing I think that public meaning approaches would certainly want to emphasize is we should be cognizant of the fact that is sometimes the case, the Constitution drafters are choosing to draft a constitutional text that includes broad rules that are going to have to be applied in a variety of circumstances into the future. And that requires an interpreter to try to be thinking not just about what the specific policy preferences are of those who are drafting the Constitution but really trying to think about what is the larger rule that they laid down and then to exercise judgement to determine how that rule ought to be applied in particular circumstances.
My suspicion is there's still going to be a gap between what Professor Drakeman would emphasize and what original public meaning scholars would emphasize about how much judgement future courts and future interpreters are going to have to exercise in order to think through how to apply more abstract rules to a particular circumstances going forward. But I look forward to seeing how this concern winds up developing over time and to what degree does the gap get wider and to what degree does it shrink between Professor Drakeman's view about intentionalism and how it ought to play out in practice and the more traditional, what's now traditional, public meaning perspective that many others would emphasize.
Professor Drakeman only says a few brief words in the book about what to do when you have irreducible ambiguity in the context of the constitutional text. As Professor Solum notes, a lot of the new originalism would emphasize that we're now in the construction zone when we encounter that kind of aspect of the Constitution where we have to start making political choices and exercising political judgement about how to flesh out Constitution rules in the face of that kind of ambiguity. And it's not clear if Professor Drakeman actually thinks we can reduce that core of the construction zone to nothing or next to nothing or whether or not it will remain a sizable portion of what those who are trying to live under written Constitution will have to grapple with moving forward.
One feature of the originalism is to recognize that there is in fact going to be a fair amount of irreducible ambiguity, uncertainty about the meaning of the constitutional text that's going to have to be fleshed out in some fashion. Intentionalists traditionally were often concerned with minimizing how much of that ambiguity is going to be left in order to claim a very large amount of certainly about what the Constitution actually requires in practice. It's just not entirely clear to me how far Professor Drakeman wanted to go in that direction of claiming that the constitutional text if properly interpreted will provide clear answers to the full range of constitutional questions we want to encounter or whether or not we will still be confronted with a significant amount of uncertainty about what the Constitution requires. And as a consequence be confronted with the necessity of making some choices about what to do with the constitutional text, even given this particular form of originalism.
I look forward to hearing more from Mr. Drakeman today but also in the future as we see this kind of approach laid out. But it's an interesting new additional to the originalist debates, highlights some features of our thinking about originalism that I think he correctly suggests that we have not been paying enough attention to. There's a great deal of value then in trying to pay more attention to some of the arguments he's putting on the table.
Hon. Britt Grant: Thank you. Some interesting feedback there, too. I think one of the last points you made, Professor Whittington, I think, is a great place to start the moderated discussion, which is, Professor Drakeman, how much do you see your theory reducing the amount of ambiguity that scholars and courts are dealing with versus simply being a different mode of interpretation that might lead us to a more correct answer that still leaves significant ambiguity? I know there's a been lot of discussion about strategies to reduce ambiguity and losses of textual interpretations. But where do you see your theory coming into play on that front?
Prof. Don Drakeman: Sure. Thanks to all of you for the great insights, and that's a super question, Judge Grant. I think this whole project came out of ambiguity, and you'll probably say it ends up with a lot of ambiguity. But my main background -- I'm a church state scholar, and I've written a lot about the establishment clause, and where I came out was you do it as fairly as possible to the evidence. You look at the techniques of OPM originalism, semantic meaning, context, everything else. You get at least four different answers, four -- as far as I can see as a historian, as a lawyer -- four equally plausible ways to read the Constitution that there's simply no good reason to pick one over the other except for the fact that it's really quite clear what the first congress was picking one over the others. If you're going to look solely at the broader context and do—again, it's sort of a matter of how hard core your OPM originalism is. If you don't look at all that the records of the first Congress, then you're going to miss that. If you look only there and don't look at the public meaning, then you'll probably come up with the right answer, but for the wrong reason.
My view is that the key philosophical issues that Professor Solum pointed to and Professor Whittington are great issues. Most of all I want to take those cases where OPM generates, if done fairly, generates ambiguity. And I take the excise tax laws and the establishment clause as basically on the one hand, a third of the federal budget and on the other hand about five dozen cases in the Supreme Court, and I say I don't think you can resolve those without going specifically to the problem they were trying to solve and how they were trying to solve it. That's what Justice Paterson did in the first Excise Tax Decision. It was reemphasized by the Chief Justice in the Affordable Care Act case. That's where it all came from.
At the end of the day, to go to Professor Whittington's question, this is not going to let us answer all our questions because one of our questions is what kind of questions should the courts be answering. So far the court has basically been saying, well, if it's an important public and social policy, we'll answer it. That historically has not been the case, and historically commissions, like the one Professor Whittington's going to be a part of but perhaps oriented somewhat differently, had looked at jurisdiction circuit and court packing as the mildest possible alternatives. Charles the First preferred the star chamber, and earlier Roman emperors simply seized the judge property and banished them to foreign lands. You can put that on the list for your committee discussions, Professor Whittington.
I think there's going to be no end to both vagueness and ambiguity in interpretation. That's what several millennia have told us. I'm not really arguing that we should put the framers intentions in place of what the public meaning is. I’m arguing that if you really dig into the public meaning, you're going to find there's more of it than appears on the surface because we're looking at it from two centuries later. And when we look backwards, the issues seem pretty clear. When you look forwards from history, they're not so clear.
Ultimately there will be questions to which there's no answer, and then you get into issues of basic roles of courts in society. But you're right, none of this is going to fix it, but I think I'm a little closer to the Grecian view than Professor Solum would give me credit for. I just don't think it takes us far enough.
Hon. Britt Grant: Any response to that, Professor Solum?
Prof. Lawrence Solum: Thank you. I want to just emphasize first how terrific the book is. I absolutely agree that the Constitution is riddled with semantic ambiguities. Of course it is. Almost every word in the English language has more than one meaning, more than one sense. So in order to understand the Constitution, we have to look beyond the words and understand the context in which it was written.
An important part of that context is the problems they were trying to solve. I would agree that in order to understand phrases like excise tax or the idea of the establishment of religion, we need to look beyond the dictionary definitions. We need to understand what problem was being addressed, and when we understand that we'll be able to figure out what the constitutional text communicated to the public. So maybe we don't disagree at all or maybe it's just a matter of emphasis.
I do think that it's important to understand that they saw the Constitution as different from an ordinary statute. And one of the reasons they thought it was different was because they understood it to be an act of democratic self-governance, an act of popular sovereignty. It begins, "We the people." And as Chief Justice John Marshall said in Gibbons v. Ogden, it's because the people adopted the Constitution that it has to be understood to have employed words in their natural sense.
I think public meaning originalism reflects a profound difference created by a Constitution adopted by the people as something that's really quite unlike statutes adopted by parliament or ordinances established by kings.
Hon. Britt Grant: That was actually a question that I had as I was listening to everyone's remarks. Professor Drakemen, how much daylight do you actually think there is between your proposed method and what a lot of OPM originalists scholars seem to think is the importance of context in determining that original public meaning? Where do you see the differences between those two?
Prof. Don Drakeman: I think that there ought to be not much, if their view of context is broad enough. Because I think my view of public meaning is broad enough to overlap. So you really get to the question of on the spectrum of OPM originalists, you have corpus linguistics dictionary group that just say we could go out there and measure something or look something up and there's your meaning, and we're not going to look at anything else. Those are the people that I probably have the most distance from. And then there are Professor Solum's triangulation method or both Professor Solum and Professor Whittington are far more friendly to the framers that a number of folks that are on the -- what I would call -- the Justice Scalia end of I'm not interested in what the framers had to say. I'm only interested in the words they picked.
I would say I'm interested in both. I don't think that's going to drive a lot of different things. I would not take the position necessarily that I can dream up an intention of the framers that does not overlap with at least one equally good objective public meaning. I just think -- again, I'm a historian and therefore spend too much time looking at the context. I think if you do that you realize -- like they found out that a debate in Congress over the excise work. What they agree upon was that people in New England thought it meant something different than what people in Virginia thought.
So we've got that in the record. What do you do about that? What do you pick? You can flip a coin. You can count word usages at corpus, or you can say the excise tax was a result of a deal. It was a compromise, though not particularly attractive one. Nobody wanted it going in. It was the probably best of a bunch of bad alternatives. And that's what they got to. Otherwise as Justice Paterson said, "The semantic questions turn in a circle." You go round and round, you'd find really good evidence on what it means. What's the context? Well, they were arguing about the taxation power, but only when you get right into it and say why do they care about this issue, do you come up with the capitation and real property answer that Paterson locked on to and that the Chief Uustice picked up in the Affordable Care Act. And it was in fact what they did.
So anyway, that's a long answer to a short and better question. My concern's not that OPM originalism is bad. I think it needs more history, and when it gets more history, it's going to need more theory to figure out how to deal with ambiguities. That's what I was trying to provide.
Hon. Britt Grant: Very interesting response. I'll let the audience know we're not quite ready, but in the next few minutes, we'll start with some audience questions, so please go ahead and be thinking of your questions and feel free to go in and enter them so I can pose some additional questions to you, the panelists.
In the meantime, before we move on to the audience, I've been wondering whether any of the three of you have a concern that a heightened focus on the framers' intentions could be used intentionally or not as a smoke screen for the current thinkers' intentions or beliefs about what a constitutional interpretation is about to mean. I know that was one of the, is one of the significant criticisms of the living constitution and other similar theories. Does this, since it perhaps is somewhat less subjective than other modes of interpretation that could be argued, does this provide a new smoke screen for folks to maybe move the Constitution the direction that they think it should go?
Prof. Don Drakeman: Yes. [Laughter] Bad intentionalism is probably worse than bad OPM originalism. But it's still bad intentionalism, and what we've done -- take the wall of separation or James Madison Memorial Remonstrance which has given us this huge and messy jurisprudence about church and state. That's just bad originalism. It was taking a guy who was there in the first congress and looking at something he said somewhere else about another context and piping that into your First Amendment because he happened to say something that was really attractive to some new deal judges. Yes, that's a risk.
I think that the balance to that risk is that if we really take the original public meaning research seriously enough, we're going to get ambiguity all over the place, and we're going to need a way to resolve it, and this is it.
So that's a tough one. That's a great, great question.
Hon Britt Grant: Are there responses from Professor Whittington or Professor Solum before we move on to audience questions?
Prof. Keith Solum: I just would say that if a move back to original intent, I think, can be seen in two ways. So I think some people are very much attracted by the idea of original intent because they hope it provides more determinacy. They are hoping that when we have sort of the concrete -- if we honor, especially, the concrete expectations of the framers with respect to particular constitutional issues, that will make things more determinate. But then there's the worry on the other side is that if we're really talking about constitutional preferences, it's going to turn out that there's a lot of material to work with in the constitutional materials, in part because there were many, many disagreements about what ought to happen. And then, in practice, that can lead to what I think Professor Drakeman is quite rightly very opposed to, which is bad intentionalism or the cherry picking of the quote that indicates the constitutional preference that goes the way you want.
And of course the Supreme Court -- I think from Supreme Court's originalism has gotten much better, and I'm especially impressed with some of the originalism that we've see very recently from the United States Courts of Appeal. But as you go back, you see lots of cherry picking of sort of "framers' intent" used acontextually to support a preferred outcome.
Prof. Keith Whittington: After that I become quite impatient with the smoke screen style arguments. There is a lot of criticism of the Court and of originalism, particularly as providing these kind of smoke screens. But fundamentally, it is true that the justices are often influenced by their own policy preferences. It doesn't matter what particular theory of constitutional interpretation they have as to whether or not that's a factor in how judges behave. And I think it's also the case that judges are less likely to engage in using originalism as a smoke screen then a worry about a kind of motivated reasoning that you have a certain inclination about how you think a case ought to come out, and it's easy to persuade yourself that the arguments line up behind that particular rationale.
The best corrective to that whether that takes the form of originalism or takes the form of other argumentative styles is to correct bad opinions with better arguments, and that all arguments across the board can be criticized, and we ought to be open to criticizing jurists when they make mistakes and make bad arguments. But I don't think that's a reason therefore one to reject an entire approach to thinking about constitutional interpretation, so much as it is a reason to actually taking seriously our responsibilities of evaluating the quality of the arguments that we're seeing and criticizing them when they deserve criticism.
Hon. Britt Grant: Two great responses and important things to remember. I will start with one question that I think includes threads from several of the questions that we have here which is what role if any should the Declaration of Independence play in interpreting any part of the Constitution? I won't get into reasons why that's interesting or related to this. I’m sure you can all three think of some, but I know several people have had questions related to the Declaration and it's import on these types of discussion.
Professor Drakeman: I'll answer it from my point of view, but I'd actually be interested in hearing from Professors Whittington and Solum about some from theirs, how they see it.
Professor Solum: I guess I think it's obviously relevant to constitutional interpretation. The Declaration of Independence is an important part of the public context of constitutional communication. Thinking about the Declaration, the Revolutionary War, the Articles of the Confederation, all of that is part of the story. It's part of the basic context that members of the public would have borne in mind as they were reading the words of the Constitution.
But frequently when people talk about the Declaration of Independence and the Constitution, what they really have in mind is the Preamble to the Declaration which of course is majestic, "All humans are created equal" and a sense of "inalienable rights." The question as to what role that Preamble has is important, but I think that the role of the Preamble of the Declaration is perhaps less important than many people think because the underlying set of political ideas that are an important part of the context of the Constitution and particularly important in interpreting the first eight amendments and the Ninth Amendment and later the privileges or immunities clause in the Fourteenth Amendment, these ideas are not only to be found in the Preamble of the Declaration. And in fact, their importance to constitutional interpretation rests in part on the fact that they are pervasive, and that these are not just ideas that appeared in one document a decade or so earlier.
Prof. Keith Whittington: That strikes me as right in general. I'm not sure that the Declaration does a lot of independent work as a source of constitutional interpretation, but it's certainly informative of the context for thinking about the more concrete provisions that appear in the federal Constitution. Notably, the Declaration often is cited in political debates as well as some judicial opinions in early American history in trying to think about some state constitutional provisions, for example, which often echo very directly the same language as the Declaration of Independence. So one reason why you might cite it is the extent to which it mirrors the language in the constitutional text is itself.
I think as Professor Solum just noted, the ideas and principles embodied in the Declaration are woven into lots of the specific provisions of the federal Constitution and are perhaps helpful in thinking about the meaning of some of those specific provisions. But I don't think I'd want to take the Declaration on its own terms and independently take that as a source of constitutional law in and of itself for somewhat similar reasons as I think we should be somewhat reluctant to take the Preamble to the U.S. Constitution as an independent source of law and try to directly apply it.
These things provide context that are helpful in thinking through the more specific rules that are embodied in the Constitution, but ultimately what our aim is is to interpret what those particular rules, how we're implementing the principles that are embodied in the Declaration and in the Preamble to the Constitution, not simply focusing directly on those principles.
Hon. Britt Grant: Any responses, Professor Drakeman?
Prof. Don Drakeman: I thought both of those are really good answers. I would just cite in particular an example of my colleague Professor Phillip Munoz who's done come great work on looking at the notion of the inalienable right of religion and tracing it not just directly from the Declaration to the Constitution, but as it comes through the various state declarations of rights and then emerges as part of a broader conversation about the free exercise of religion, the liberty of conscious that goes into the First Amendment.
Doing that kind of work, the step-by-step, as opposed to just taking two great documents and trying to read them side-by-side without any intermediary, I think that's the harder way. The better way is to do all the footnotes.
Hon. Britt Grant: Thank you. We've got a great question from Carlos [inaudible 49:53] who asks the following, "What do the panelists think of Professor Drakeman's claim that strong form public meeting approaches are a departure from the way legal interpretation was long understood in the western tradition? This is facing criticism because one of the attractions of Justice Scalia's approach is that he claims to be restoring a lost tradition, not engaging in a strong break from our tradition."
Prof. Don Drakeman: If I could just clarify that a little bit. I think, and I think if you look at the evidence, the will of the lawmaker is just what you read over and over again in every language from the Roman era to the present. The objective public meaning of the words is as Laxton said, "It is the best evidence of the will of the lawmaker." But over those millennia, constitutional theorists and courts looked at subjective meaning, objective meaning. They looked at updated objective meaning, and they looked at updated subjective meaning. To the extent that Justice Scalia focused on the tradition of semantic meaning or objective meaning, he's not wrong about that, but I think he over emphasized it as the only approach. Dynamic readings are ancient, as are the use of objective original meaning versus objective dynamic reading. All were meant to point towards the will of the lawmaker, and we kind of lost that. What did the lawmaker want to do here? And I think Justice Scalia every now and then cites the framers. Even he can't resist going into the debates and pulling out some language that's useful or updating a provision about search and seizure.
So I think that it was a great rhetorical argument to focus on the public meaning, and I don't think we ought to lose that in my push for intentionalism. But I think that the public meaning points to the intent, and together they ought to give you what's really going on.
Prof. Keith Whittington: If I could address this question, and this gives me the opportunity to share a slide that I didn't get to. I think that it's very important to understand that the United States Constitution is different in a profound way. So the United States Constitution begins, "We the people who are ordaining and establishing this Constitution." The idea of popular sovereignty is an idea that the relevant lawmakers are the people. Then from that assumption, I think it follows that if we are looking for the will of the lawmaker and the lawmaker is the people, is we the people, that the relevant meaning is the meaning that was ratified by the intensely popular process of ratification.
Pauline Maier's book on the ratification process, a really wonderful book, by an author who died way too young, really shows how intense the public participation in the ratification process was with town meetings where citizens read the Constitution out loud to each other and debated its provisions. And this is the source of the idea that John Marshall articulates in Gibbons v. Ogden. In the nineteenth century there are lots of statements about statutory interpretation that emphasize legislative intent. That's for sure true, but there are dozens and dozens of statements by Supreme Court justices, treatise writers, participants in the Philadelphia Convention emphasizing the idea of that it's a public document with an ordinary meaning that has to be comprehensible by the people, and the framers knew that. So they intended to write a document that would be understood by the public, so in sort of technical jargon, that is they had a second order communicative intention to convey public meaning.
Hon. Britt Grant: Thank you. Well, it looks like we've got time for one more question, and this is from Carl Esjeck (sp), "Do federal interpretations of the Constitution and Bill of Rights for the first 20 to 40 years after 1789 have a heightened role in intent or meaning?"
Prof. Don Drakeman: Lord Koch would say, back in his institute, and Blackstone would pick up on this, that the interpretation of people at the time of enactment is something to be taken very seriously. And if some of those people were framers, as in my example of Justice Paterson, then I think that it gives you some very interesting evidence. It doesn't mean they aren't wrong or they are interpreting it as we would like to see it or as we think is done correctly if we were to look at the entire context of the language as well as the circumstances. But certainly there's a very, very old maxim in the law that says contemporary expressions of interpretation are meaningful. I wish I could quite the Latin to you, but it slips my mind at the moment.
Hon. Britt Grant: We wouldn't understand that anyway, so [laughter].
Prof. Don Drakeman: Of course we would all [laughter].
Hon. Britt Grant: Any other responses or final closing words to offer as we reach the end?
Prof. Keith Whittington: I'll just echo on that point that as Professor Drakeman said, the early interpretations ought to be taken very seriously. We also shouldn't lose sight of the fact that the early interpreters were also politicians and judges in their own right. They're affected by their own pressures. And just like we think it's possible for judges and politicians to get constitutional meaning wrong today, for all kinds of reasons, not only through mistakes, but also because sometimes they simply depart from the constitutional rule because it's politically convenient or they feel the need to do so. That was true in the early days as well. So we should take early interpretations very seriously, but we shouldn't think they are necessarily dispositive of what the authoritative meaning actually is.
Hon. Britt Grant: Well, that seems like a wonderful place to end as we hit 1:00 p.m. sharp. I know many people on here have taken out time to hear this important conversation. I'd like to thank all three of our panelists. Professor Drakeman, thank you for this wonderful book which really contributes a lot not only to this conversation that we've had here today but also to the broader conversation about originalism and how both scholars and judges should be looking at determining the meaning of the Constitution and its provisions.
Thank you to Professors Whittington and Solum for giving us such an engaging discussion and a lot to think about. We had a lot of great questions that were weren't able to get to, but I'm hopeful that these will keep coming up in similar panels and others in the futures. I think we'll have a lot of debate as your book gets more widely read and reviewed and discussed. So I appreciate everyone's time and hope you have a great rest of your day.
Professor Drakeman: Thank you very much. I really appreciate everybody but thank you especially to the panel. Super.
Nick Marr: Thanks very much everyone. Just a quick thanks on behalf of The Federalist Society to Judge Grant, especially, for taking the time and all of our panelists. If you're tuning in, great audience, great questions. We didn't get to all of them, as Judge mentioned, but do tune back in and be checking your emails and our website announcements about upcoming Teleforum calls and Zoom events like this one. So with that we don't keep you any longer. Until next time, we are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.