On May 11, 2020, the Buckley Program hosted a public lecture with Josh Blackman on the topic “The Constitution in the Time of Coronavirus” as the second edition of our new “What I Would Have Said” lecture series. Professor Blackman specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. He is the author of several books, including Unprecedented: The Constitutional Challenge to Obamacare, Unraveled: Obamacare, Religious Liberty, and Executive Power, and An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. Professor Blackman has twice testified before the House Judiciary Committee on the constitutionality of executive action on immigration and health care, and he is an adjunct scholar at the Cato Institute. The transcript of this interview has been lightly edited for clarity.
Alex McGrath: Your article [available here] discusses both when and how lower court judges can be originalist, but it doesn’t address why a judge should be originalist. So, I wanted to start with asking why someone should be an originalist when interpreting the Constitution.
Josh Blackman: Originalism is an easy enough idea to understand. We start from a basic premise, that we have a written Constitution. There are words, and words have meaning. And if we want to understand what the Constitution says, we should understand what the words mean. Now, the words were not written in the year 2020. The words were written in the year 1787, or 1868, or various other points in history. And we try to say: “Well, what did these words mean at the time?” So far, not controversial.
Where the difficulties arise is: how do we know what these words mean? Can we even know what these words mean? And what happens if we don’t like what the words mean? And this is where a lot of debates about originalism move on.
There are some provisions in the Constitution that may seem fairly straightforward. A classic example is a person must be 35 to be President. That seems straightforward, although it might not be that straightforward. Does that mean 35 in the Gregorian calendar or in the Julian calendar? There’s actually litigation over what is a year, and we can check if they used a Gregorian calendar, the Julian calendar, or a different calendar that was in use.
But then you have other provisions that are far more open-ended. For example, what is due process of law? What does it mean to guarantee equal protection of law? What does it mean to guarantee privileges or immunities of citizenship? Once you get beyond general discussions of what these terms mean, there’s difficulties in applying them to particular cases. What about a right of contract? A right to abortion? A right to a marriage? How do we extend these general concepts to specific concrete cases?
And it’s here that I think originalism becomes a highly debated topic. Some lawyers and judges think that originalism allows courts to decide cases on neutral grounds. Critics argue that it’s anything but neutral and that originalism simply allows people to cover up their biases and hide their political views in historical garb. At a basic level, originalism is designed to faithfully follow the meaning of the words enacted. But critics and even some originalists acknowledge it’s not an easy process, and it’s often very hard to accomplish.
AM: And speaking of one of the debates, I would say a recent innovation in originalism is speaking about the original public meaning of particular constitutional clauses, as opposed to what those clauses would mean to the Framers at the Constitutional Convention. Could you perhaps speak to that innovation in originalist thought?
Very often when you see people write about the Constitution, they asked what did the Framers intend? What did Thomas Jefferson intend? Well, he wasn’t at the convention. You know, what did Alexander Hamilton intend? Well, Hamilton was a bit of an outlier. He was a monarchist. You know, what did James Madison intend? Well, he was a southerner who favored the larger slave states. You know, what did Gouverneur Morris intend?
These were different people who all had different agendas at the Convention. And I think there’s difficulty trying to say what the Framers’ intent was. There’s not one single framework; instead, there was a group of people who had different competing views. Focusing on original intent has largely gone by the wayside in the last two decades or so. In recent years, originalists focus on what’s called the “original public meaning.” That is, what is the meaning of the words used in the Constitution. It’s understood this is a more neutral approach because you can use sources to find the meaning of words. You have contemporary dictionaries, you have a different documents discussing these texts, we have technology, something called corpus linguistics, which is sort of the cutting edge. We’re looking at these huge databases to see what words we use at given times. These technologies allow us to determine with some degree of accuracy, what did various words mean, in the Constitution at the time they were enacted?
I’ll give you an easy example. The Constitution uses phrase “domestic violence,” right? Today domestic violence has a meaning it means you have spousal abuse, right? You have some sort of a problems at home where people are hurting each other. That’s a fairly novel meaning for domestic violence. It came around the 1970s. Historically, domestic violence meant insurrection, rebellion. And these were words that are [made] much clearer, meaning when you make use of these new forms of technology.
AM: I want to drill down to understand your idea of the original public meaning. I’m thinking of the 27th Amendment specifically that was offered back when the original Bill of Rights was proposed but ratified relatively recently. To understand the original public meaning, is it from when it’s written or what it meant to the ratifiers recently?
JB: What is the relevant audience when we’re doing originalism? Are we thinking only about the members of the Convention in Philadelphia? Are we thinking about the state ratifying conventions? Each state had a separate convention. Are we thinking about the people who are following it? Or just a random farmer in Pennsylvania or Maryland, where you’re from, who read about this new document and decided to pick it up and read it?
I think the answer depends on the different types of language. I think there’s some technical language in the Constitution that would have been well understood by lawyers and people trained in the Inns of Court of England, and Ireland. And I think there’s other language that would have been far more accessible to the general public. And different treatment should apply to the different types of languages. If it’s technical language or other kinds, I think you have different audiences at top to bottom.
AM: To use another example I thought about when considering this question, and it does require an assumption, which is if we were to assume that the Equal Rights Amendment (ERA)—when it was originally put forward—didn’t have a limit on the time needed to ratify the amendment. And so, if it were ratified today, I think you could make a reasonable argument that our definition of what discrimination based off of sex means is different from what the definition would have been when the amendment was first written back in the seventies. Let’s say it’s ratified today. How would do you think that originalists would faithfully interpret it, again, assuming that it didn’t have the provision that limited the enactment time?
JB: Really good question. Let me just take a step back and give some background for the Equal Rights Amendment. Maybe people aren’t familiar with that. Throughout the seventies, several states consider whether to a ratify the so-called “Equal Rights Amendment,” and this amendment would have updated the Constitution to prevent discrimination on the basis of sex. The amendment also said it would have to be ratified by a certain date. It wasn’t. Then, Congress tried to basically pass a resolution extending that date, and it still wasn’t ratified. This past January, Virginia became the 38th state, to reach the requisite three-quarter states, to ratify an amendment to the Constitution. They say they are now enough to ratify; well, along the way other states have actually rescinded their ratifications. So, it isn’t even clear if Virginia is the requisite state or maybe the other ratifications are invalid.
That aside, your question is more foundational. Let’s assume it is ratified. What is our relevant timeframe? Are we looking at the meaning of the word “sex” in the 1970s? Or the meaning of the word “sex” near 2020? Very different. This term the Supreme Court is considering if the phrase “sex discrimination” includes discrimination on the basis of sexual orientation or gender identity. So, an originalist, I think, actually has a very tricky situation.
And let me give you my personal theory. I think one of the reasons why we should limit a constitutional amendment to a specific point in time to be ratified is to avoid this problem. When you’re talking about a constitutional change, it can’t be intergenerational. I think it’s incumbent to ratify within a specific period to avoid this problem. That is the problem of “what did it mean, what do the words actually mean?”. Would a state have ratified it in the 1970s, if they knew 40 years later it would give rise to protecting transgender people? Maybe the answer is yes, maybe the answer is no. But in the 20th century, almost every amendment has had a time limit on it, I think to help avoid this type of originalist problem. Of course, the exception is the 27th Amendment, which limited congressional pay. It was first proposed in 1789. It was ratified in 1992. Fortunately, that’s not a very ambiguous provision. But I think that there should be limits on the timeframe, and I think the ERA probably should start over from scratch to avoid these kinds of linguistic problems.
AM: We’ve done the “why” of originalism. I think your article is very thorough on the “when.”
AM: I want to talk about the “how” of originalism. You mentioned the lack of training within the legal academy for originalism, and really the best that there is according to your article is the two-week seminar that Georgetown [offers], which doesn’t really seem like enough time for heavy duty historical training. And so, what role do originalists see for actual historians in the courts. Would appointing a historian as a judge be appropriate? Or would having a staff historian, sort of like Congress has the [Congressional Research Service], if the circuit courts were to have a historian on call, what would your thoughts on that be?
JB: That’s a really thoughtful question. Historians and originalists don’t get along well. I’m putting it mildly. Historians hate originalism. Indeed, there are very few professional historians that agree with Heller for example, the Second Amendment case. There are just not many of them. Almost all professional historians take a view that Heller is wrong. Professional historians think that originalists lack the training, lack the depth of knowledge, and lack the methodology to engage in the sort of historical work. They believe this, and they’re very open about saying it.
Originalists usually have a response, and originalists will usually say, we’re actually doing something different. Right? Legal historians are trying to figure out the context of some certain historical events, whereas originalists are trying to give meaning to a legal text. Lawyers have the training to give meaning to legal texts, and legal historians may not. Now, of course, there are some legal historians that also have JDs, that are attorneys, and they also hate originalists.
I’ll just give you one anecdote to show that no one is beyond the reach of making errors. I’ve done a lot of work on the Foreign Emoluments Clause litigation. These are cases that alleged President Trump is profiting from foreign governments in office, and he’s violating the Constitution’s Foreign Emoluments Clause. This is an obscure provision in the Constitution that people generally don’t care about. The language in this clause says that people holding office under the United States, it says “offices under the United States,” are bound by the provision. What does this phrase “office under the United States” mean? Years ago, I became persuaded by my colleague, Seth Barrett Tillman in Ireland, that this phrase “office under the United States” refers to appointed positions, not elected positions. It didn’t really matter until Trump was elected. But then it mattered.
One of the pieces of evidence we had was a document created by Hamilton. He signed this list that was the base list of salaries in different positions of those who hold “office under the United States.” President Washington was not on the list, and we used this document as evidence that Hamilton understood the clause the same way we did. Not dispositive, but as evidence. And the legal historians hated us. They attacked us. In fact, several legal historians at top universities filed a brief in court, which accused us of basically misleading the court. There was another document, which they said Hamilton signed, which listed the President. And they even went to the National Archives and took pictures of this document to show that Hamilton signed this document.
Now, you can’t find the website anymore because historians took it down. The reason why is they were wrong. Hamilton did not sign that document. And little Seth and me, we found people who authenticate Hamilton signatures for auction houses who confirmed that the document cited was created about three decades after Hamilton was shot to death by Aaron Burr. Now, the historians apologized; they came out and said, “we’re sorry.” They never acknowledged that our argument’s correct. They just said they made a mistake. How? I don’t know.
But I use this little story as an anecdote to say that historians are not beyond the scope of motivated reasoning. They’re just as guilty as all of us. And people with trained PhDs in history are not impervious to making mistakes. When you have this sort of monolithic consensus among people in a field, that doesn’t necessarily mean they’re right; it means that they all agree with each other, and they live in an echo chamber and could not possibly deign to have people disagree with them. So, I go about my job, and I do the best I can. Historians do their job; they do the best they can. Do I think courts should appoint historians? Not really, I don’t think the courts have tried to figure out a legal context, they are trying to figure out legal meaning, and, in that regard, legal historians don’t have an advantage. But again, I’m sure if you interview a legal historian, they’ll say that Blackman’s an idiot. [Blackman’s] wrong, and he needs to go back to school. Maybe I do. Maybe I’ll go back to Yale for a couple of years, and I’ll learn a thing or two.
AM: My other question is that corpus linguistics is a very exciting and new innovation in the law, but also, it’s a fundamentally linguistic inquiry. Do you think that lawyers are qualified to espouse on such technical things such as that?
JB: Yeah, so the historians hate me and the linguists hate me also. I have a lot of fans. [Laughs] The linguists also insist that Heller‘s wrongly decided. They think that the phrase “to keep and bear arms” in the Second Amendment only had a military-militia meaning, and they disagree with me. I’m actually working on a paper with another colleague, James Phillips, on corpus linguistics and the Second Amendment. I don’t need to go into the depths of the research, but I’ll make this point straight up: Scalia made mistakes involving linguistics.
Look, I’m a Scalia fan, I love him. I miss him deeply. But he made mistakes. Justice Stevens, who wrote the dissent, made more mistakes. And it’s not enough for the linguist to pile on Scalia. They also have to defend the Stevens opinion, which they don’t really do. In fact, the linguists largely advance an argument that no one takes. The linguist argues that the Second Amendment protects the right of states to have militias, and even Stevens doesn’t endorse that. Stevens said the Second Amendment protects the right of individuals to serve in the militia, which seems somewhat similar, yet it’s actually quite distinct. But let’s say that the linguistics actually do all cut in the favor of the linguistics professors. There’s still other history, which they don’t consider.
Originalists are at the center of this intersection of both linguistics and history and legal meaning and it all comes together. The historians only look at history and don’t really focus on the language of law. And the linguists only focus on language not looking at history. So, I think it’s impossible to say Heller was right or wrong by looking at these silos of information. And that’s largely where I fall, I think Scalia screwed stuff up, and I think Stevens screwed more stuff up, and I can live with the Heller decision.
AM: Then, jumping around a bit, is your conception of originalism that it will lead to one and only one objective answer, and that if we were to neutrally and perfectly apply originalist principles we would come to an answer that apolitically gives us the answer to all cases or controversies in front of us?
JB: I don’t think I can say originalism yields a single answer. I think originalism will narrow the range of possible answers. And it narrows it down and I think it rejects some and suggests some are better than others. But at the end of the day, at bottom, someone has to make a decision. A judge will have to say, “Okay, given two choices, A or B, I’ll go with A or go with B or maybe C, D, or E,” right? There’s still human judgment involved. It’s not divine. Judges don’t read the entrails of animals and figure out the prophecy. There’s no one magic answer. Judges are human, and they will sometimes make mistakes. But I think originalism is an effective tool that will decide more cases than people give it credit for. And for that reason, I’m confident and advancing this jurisprudence, but I acknowledge it’s not it’s not divine providence; it cannot be.
AM: Let’s say [the originalist judge has] narrowed it down from five possible outcomes to two possible outcomes. Do you think there’s any merit to some of the things that, say, the left or others advance in choosing between those two plausible interpretations of the evidence, such as what we’ve evolved to understand the Constitution to mean, or what perhaps might be seen as a just outcome or something like that? How is the originalist judge to decide?
JB: Well, I will mention my colleague, Randy Barnett at Georgetown, who I think is one of the leading originalists on planet Earth. There aren’t many of us, so it’s actually not hard to lead. But he is definitely one of the most well known and most widely cited originalists around. And Randy acknowledges, at some point, the text runs out, the meaning of the text runs out you. You can’t squeeze water from a stone, you got all you got from it, and you can’t get anything else from it. At that point, courts can engage what’s called construction, which involves using some broader principles to go beyond the text. What are those principles? Well, we describe those principles as being within a zone, what’s called a construction zone, where you can make certain inferences, but you can’t perhaps go too far. So, where do you get these inferences from? Randy describes the “spirit of the Constitution” and some of the founding ideals. I like Randy’s work, but I think I think any critic would recognize that you’re making judgment calls. And I would say you use the text for as far as it goes. And then then you when you get there, that’s when you talk about construction, but you have to stay in the history as far as it goes.
AM: Because that, to me, seems like one of the best criticisms of originalism. If we accept that originalism runs out at a point, then we lose a bit of the force of originalism. The democratic grounding theory of originalism, as I understand it, is that if we were to not be originalist, it would be democratically illegitimate to do anything besides what was agreed to by ratification process. If even with originalism, we still have to bring in these ideas, say the “zone of construction” or say any merits that a judge finds, what advantage do we get from originalism that other interpretive philosophies don’t provide us with?
JB: Well look, I think it’s very easy to criticize originalism and I will do it myself. But then when you ask the other side: what’s your theory? Where do you start from? They’ll say, we have modalities, we have methods of interpretation, we have values, we have principles, and very quickly it falls apart. It’s clear that there’s no “there” there. And some lawyers and judges are canvassing, “Yep, we are doing what we think is best.” If that’s what we’re doing, then why we have judges who aren’t elected and why don’t we just have legislature to it, right? Why don’t we have people who are accountable do it? Right? I’m not opposed in the abstract of allowing judges to follow their sense of morality. I think maybe that’s a legitimate system of governance, but it’s not the one that we have. I think that for all the faults that originalism has, it’s still better. I think Justice Scalia described originalism as the lesser evil. Right? It’s not perfect, it’s got problems, but it’s less bad than what the other guy’s got, and I’m okay with that.
AM: I see that our time is about to run out, and I really have enjoyed our conversation. One of my personal interests is in state courts, and I wanted to hear your thoughts on the role of originalism in state courts. What an originalist judge should do on a state Supreme Court?
JB: You know, states have constitutions also, Jeff Sutton, a federal judge from Ohio wrote 51 Imperfect Solutions, which is a very good book. He recognized that just because the Federal Constitution is silent on an issue, it doesn’t mean a State Constitution is also silent. State Constitutions are the source of a wealth of individual protections. There is not much focus on originalism in state courts, perhaps because state constitutions aren’t that old. State constitutions might be relatively recent while the Federal Constitution is around two hundred and forty years old. State Constitutions are often updated, but I think it’s a fruitful ground of study, before we interpret any document, we should figure out what it means. I hope people take that more strongly.
AM: And obviously, the big talk in legal conservative circles now is Professor Vermeule’s piece “Beyond Originalism,” [linked here] and I know that you have shared some critiques of it on Twitter that other people have written, but I wanted to know if you had your response to his piece.
JB: Oh, I can’t do that in a second. Let me say this about Adrian. People are drawn to originalism for a variety of reasons. Some people are drawn to it because they think it is a neutral way to interpret the Constitution, some people think it’s going to hue towards their understanding of how the Framers understood the Constitution, and some people are drawn to it because they think it will advance a conservative agenda. There are different strokes for different folks. For those who think it is going to advance a conservative agenda, I think they are going to be disappointed. Increasingly. My own view, and Randy shares this view, is that the Constitution is a more libertarian document. I think it is more libertarian than it is conservative. I think that has implications. If conservative lawyers think they are not getting their payoff from their current investment, they may abandon originalism. And Adrian’s idea of common-good conservativism may become more attractive. If the left is attacking originalism, they should welcome Adrian’s candor. They should say “You know what, screw it, we aren’t going to pretend this is what James Madison wanted,” and just interpret the Constitution how they want. If we can find in that vague language of general welfare the foundations of a religious theocracy, then let’s do it. I’m obviously exaggerating, but if liberals are very upset about originalism, then wait until they see what Adrian has up his sleeve. We have, as Scalia would say, the lesser of two evils.
AM: So, then, you do think that originalism is a constraining ideology?
JB: Yeah, I do, it does have constraints. I think you see this in the criminal cases where you see Scalia and Gorsuch ruling for defendants where they otherwise wouldn’t have. And maybe it could be that they are just libertarians. I don’t think Scalia was. I think he hated defendants. Instead, I think that he found something constraining in originalism that caused him to rule for defendants.
AM: Thank you for your time!
JB: Thanks so much.