Solum on Bilder on Originalism

Al Brophy posted below on Mary Bilder’s recent oped in Boston Globe, in which she argues against originalist readings of the Constitution, including Neil Gorsuch’s:

Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers. In his hearings, Gorsuch insisted that judges must look “backward . . . in the sense of looking at historic facts.” But when we look backward at the historic facts of the creation of the Constitution, all we see is a document written under the most trying of circumstances — to ensure a future.

Originalist scholars such as Lawrence Solum and Randy Barnett have taken issue with Bilder’s oped.  Solum, in particular, has posted five questions that he would like her to answer.  I am not planning to join the discussion on the merits of originalism, but at least one of Solum’s questions is, I think, misplaced.

Solum asks Bilder (boldface in original):

You wrote the following:

Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.

Question Two:  The passage quoted above uses the word "trying," implying but not directly stating that the attempts have been unsuccessful.  Is that reading correct?  What in particular do you believe is unsuccessful about the explications of the concept of public meaning to which you refer?  Which specific attempts do you believe are unsuccessful?

Solum, whom I greatly respect, has read too much into Bilder’s use of the word “trying.”  While it is no doubt true that Bilder is skeptical of the originalism project, all scholarship is at best an attempt to increase knowledge and understanding, and all explanations are at best provisional. 

Thus, referring to a theory as “trying to explain” does not imply failure, but rather recognizes that the scholarly enterprise is continuous.  There are no definitive answers even in the hard sciences, much less in law and the social sciences.  Originalism itself has gone through changes, moving from “original intent” to “original public meaning,” as each successive iteration tries to improve on earlier conceptions.

I have never written anything that did more than try to explain an idea, and I have never read anything in scholarship that provided a conclusive answer.  As a historian, I am unconvinced that the "original public meaning" of constitutional provisions can be recaptured with the certainty claimed by Solum and Barnett, but I am open to persuasion.  Let me suggest that Bilder wrote her oped, at least in part, in the same spirit.

Comments

[0Scalia]

I find a satisfactory answer in the law of contracts. Abe Lincoln summarizes the concept effectively: "No man is good enough to govern another man, without the other’s consent,” Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854, and COTUS and the BoR, read in pari materia and interpreted in a transparent manner, is the absolute outer limit of our consent. Stripped of grandiosity, it is a simple contract creating an express and limited agency for the benefit of third-parties, and as in all contracts, the document is to be read strictly as against the drafting party.

Probably borrowing from Hobbes, Michael McConnell observed that when people enter into a society, they surrender a portion of their natural rights and assume certain obligations in exchange for a portfolio of "civil rights" or procedural protections, with the intention of securing those natural rights they retained. This, in turn, leads to a reliable way of reading COTUS: “The office of all judges is always to make such construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act." Heydon's Case [1584] 76 Eng. Rep. 637, 638 (K.B.). In other words, the "original public meaning" is presumptively defined by its intended purpose.

In one of his bench statements, Scalia asked the appropriate question: "Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?" https://s3.amazonaws.com/s3.documentcloud.org/documents/372493/scalia-statement.pdf If the answer is not just "No" but "Hell, no," it probably isn't the correct interpretation of COTUS.