Mirror of Justice

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Thursday, July 24, 2014

Is More Less? Or is More More?

The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?

The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger's key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to "balance" the right against rival interests.

That particular "more-is-less" claim depends on the scope given to a protected right. A related "more-is-less" claim focuses on the expansion of the number of protected rights. That's the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven't seen it, Steve Smith is writing up a storm over there). Steve writes:

[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.

Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights...“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)....

Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.

Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are "substantial" trigger the law's protection. A religious burden isn't enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we've now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of "substantiality" and we talk about the shifting of burdens and the balancing of interests because we've watered down the basic right so much that we don't even really know what it is that counts as the right in the first place any longer.

But there is another side to the story. That side is admirably represented by John Inazu in this paper--More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of "rights confinement" as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest--that is, in what government ought to be interested in at all.

Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen. 

If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right's prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right's strength and ambit, but evolving cultural perceptions of the strength and ambit of the state's proper power.

July 24, 2014 in DeGirolami, Marc | Permalink

Monday, July 21, 2014

Review of Steve Smith's Rise and Decline of American Religious Freedom

I've got a review of Steve's book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

July 21, 2014 in DeGirolami, Marc | Permalink

Sunday, July 20, 2014

Some Memories of Dan Markel

I am crushed by the news of Dan's death. I got to know Dan pretty well over the last five years, espcially since Dan began to spend a good chunk of his time in New York. We both write in criminal law theory (Dan more, and better, than I), we have collaborated together on a book project about retributivism, and I participated from time to time in the criminal law theory workshop that he put together up here. He was always organizing, building, and bringing together. He was an impresario as well as a fine scholar. But when he was here in New York, we'd often find time to get breakfast alone together--just the two of us, whether down in Brooklyn (his preference) or in Manhattan (mine). Our last breakfast was in late June.

Dan was one of the leading lights of the new retributivism that sprang to life in the late 1980s and 1990s. This new retributivism often takes some of its inspiration from the work of Herbert Morris as well as the political liberalism of Rawls. There are many versions of retributivism, but Dan's built particularly on the Morrisonian foundation to conceive what he called 'the confrontational conception of retributivism.' Together and in conversation with such formidable minds as R.A. Duff and others, Dan conceived retributivism in condemnatory but also deeply humane and offender-centric terms. Retributive punishment was justified in part because in condemning the offender, it communicated respect for the offender's autonomous choices. What was key in his conception was the communication of condemnation with the intent that the recipient of the condemnation understand that condemnation (even if the recipient rejected it), and that the communication is performed in such a way that the recipient can make sense of it through his free will. You may notice a number of assumptions, including a robust notion of free will, which exist in such a conception of punishment. Dan always defended the free will of the offender fiercely against attacks coming from deterministic angles. And he defended the "intrinsic goodness" of retributivist punishment, provided that one was beginning from the situation of a society in which laws vindicated by such punishment were reasonable and democratically enacted. He was fond of quoting C.S. Lewis's observation that retribution "plants the flag of truth within the fortress of a rebel soul." Yet retributivist punishment in Dan's view of it was limited: it was a specifically political communication by the state to an offender who was a worthy interlocutor.

For many years, Dan was engaged in profitable exchanges, debates, and defenses of his communicative conception of retributivism. Some challenged his conception on the basis of conceptions of punishment dependent on the suffering of the offender. Some brought new and interesting consequentialist critiques of the CCR. Some challenged Dan's conception of retributivism as political rather than more comprehensively moral. For myself, I have always been more of a fellow traveler with respect to Dan's retributivist project than some. I found his views very appealing. But I often pressed Dan about the difference between expressivism and his CCR, and we had many long and vigorous discussions about precisely where expressivism ends and the sort of communication that he was interested in begins. Against my attacks, he was tenacious in his view that the two were qualitiatively different. The last time we had breakfast, we batted the question around for what must have been at least the 10th time. It was such fun.

Always he was extremely gracious to me and a very important person for my own scholarly development. The very first conference I ever organized--"The Retributivist Tradition and Its Future"--was co-organized by Dan. I half-joked that perhaps the conference should have been called "The Retributivist Tradition *Is* Its Future." He joked back by offering, "The Retributivist Tradition and Its Totally Different Future." Dan was the first person I ever asked to write a promotion letter on my behalf. I believe that my letter was the first such letter he had ever written. When he had a draft, he showed it to me before submitting it because, he said, "intellectual friendship is more important than the niceties of procedure." He urged me to write more in criminal law theory. I urged him to do more in law and religion. And he did do some work in that area as well. Perhaps he would have done more.

I will miss him very much.

July 20, 2014 in DeGirolami, Marc | Permalink

Saturday, July 19, 2014

New York Times Columnist: Hobby Lobby Majority is Like Boko Haram

Really, I mean it.

It's tough to keep pace with the monumental, colossal stupidity these days about this case. It would be a full-time job to respond to all of the garbage, and who's got the energy or inclination for that? This poor man aligns the Hobby Lobby Supreme Court majority with ISIS and Boko Haram. The unifying thread--both are anti-American:

The most horrific of the religion-inspired zealots may be Boko Haram in Nigeria. As is well known thanks to a feel-good and largely useless Twitter campaign, 250 girls were kidnapped by these gangsters for the crime of attending school. Boko Haram’s God tells them to sell the girls into slavery....

Violent Buddhist mobs (yes, it sounds oxymoronic) are responsible for a spate of recent attacks against Muslims in Myanmar and Sri Lanka, leaving more than 200 dead and close to 150,000 homeless. The clashes prompted the Dalai Lama to make an urgent appeal to end the bloodshed. “Buddha preaches love and compassion,” he said.

The problem is that people of faith often become fanatics of faith. Reason and force are useless against aspiring martyrs.

In the United States, God is on the currency. By brilliant design, though, he is not mentioned in the Constitution. The founders were explicit: This country would never formally align God with one political party, or allow someone to use religion to ignore civil laws. At least that was the intent. In this summer of the violent God, five justices on the Supreme Court seem to feel otherwise.

"The founders" certainly were not "explicit" in the Constitution about the points that Egan makes. "Explicit" means "clearly stated." Where are the points Egan makes about the Constitution clearly stated? What "intent" does he refer to? There is lots of evidence that at least some of "the founders" actually would recognize that religion sometimes can provide grounds for viable and cognizable objections to civil laws. Nothing in the Constitution prohibits such a recognition. And I daresay that "the founders" would rise up in unison to shout down the abject fool who lumped together organizations that kidnap, torture, and kill people with a court of law that, agree or disagree with its decision, does its best to interpret the law. There are many times when I disagree with the Supreme Court's decisions as to fundamental questions. But I recognize that those are legal disagreements. Cannot Egan do the same? In what way did "five members of the Supreme Court" align themselves with a "violent God" by ruling as they did, rather than simply issue a decision with which Egan disagrees?

I do regret posting this sort of irritated item right after Kevin's admirable post. But where is there to go with such talk? What is there left to say?

July 19, 2014 in DeGirolami, Marc | Permalink

Friday, July 18, 2014

The Necessity of Legal Sacralization?

One of the topics of a Libertas Project session concerned the maxim, “Christianity is part of the common Napoleonlaw.” There is a fascinating debate between Thomas Jefferson and Joseph Story (both in their unofficial capacities) about the maxim, much of which concerns the accuracy of the translation from the French of the phrase, ancien scripture, as used by a fifteenth century judge named Sir John Prisot (Chief Justice of Common Pleas, as far as I have been able to determine). You can see the debate worked out in this fine volume edited by Professors Daniel Dreisbach and Mark David Hall. The maxim was invoked in 19th century American judicial decisions concerning violations of anti-blasphemy laws as well as Sunday closing laws. But what did the phrase mean, and when did it go out of usage, and why?

In a superb article, When Christianity Was Part of the Common Law, Professor Stuart Banner explores the use and the decline of the maxim. It seems to have been used relatively frequently in judicial decisions of the 19th century, far less frequently in the early 20th, and by mid-century have gone out of usage entirely. Indeed, the last use of the maxim that Banner records is in a 1955 Pennsylvania state court decision that I assign my students in criminal law–Commonwealth v. Mochan–involving a prosecution for “persistent, lewd, immoral, and filthy” phone calls. Banner concludes that the maxim had almost no tangible legal effect on the substance of the 19th century blasphemy and Sunday closing law prosecutions. Those cases were about disturbing the peace in general, not about specific injuries done to Christianity that the law could remedy.

Does this mean that the maxim was functionally useless. Not at all. The maxim did not go to the substance of law, but to its nature. And the fact that the maxim falls out of use in the early twentieth century has as much or more to do with our changing conception of the common law as it does with our changing views about religion. The common law in the older view had an existence independent of the particular statements of judges: it was founded on sources much broader than the positive commands of authorized government functionaries. Those sources, which included Christian sources, sacralized the common law; they rendered it greater and deeper than positive law. One can see this view in a nineteenth century Pennsylvania blasphemy case, Updegraph v. Commonwealth, in which the court said of the common law: “It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law.”

What Edmund Burke saw as the political, legal, and constitutional value of establishment is quite similar to the functions that the maxim served in 19th century America. These both were ways in which law was sacralized. The idea was to remind officials that they are subject to a greater power, and that this greater power is founded on and drawn from sources of transcendence outside the law (see also Town of Greece v. Galloway, as I explained here). In the context of the exercise of judicial power, the sacralizing function of the maxim was to reject the claim that judicial will is all that exists. Just as, in Burke’s view, disestablishment destroys the sacralizing power of law, so, too, does the rejection of the maxim desacralize law in the American experience. Here is Banner:

Where the common law has this sort of existence independent of the statements of judges, it can include systems of thought otherwise external to the legal system without causing any tension. If the common law can be found in our architecture, in our dreams, in our manner of speech—and especially in our prerational judgments as to right and wrong—then there is nothing mystical about the notion that the common law incorporates Christianity.

This view of the common law simply died out. We no longer believe that judges discover the common law. We believe that they, and they alone, make it. When judges render a decision, that decision is not–as the old view had it–”the best evidence of the common law” but not itself the common law. The common law just is the judicial will. If judges recognize the doctrines of Christianity as part of the common law, they are making Christianity the law. That is exactly a reason that the maxim would raise Establishment Clause complaints today where in the past it would raise none.

And yet I wonder what fills the void in place of the sacralizing meta-doctrine that Christianity is part of the common law. There are two possibilities. The first is that the modern state is no longer in need of sacralization or consecration at all. We just know better today. This seems to be the view taken by Banner at the conclusion of his piece.

But a second possibility is very different. It posits that all states—and certainly all modern states whose ambit of power is large and ever-increasing—depend on sacralizing credos and maxims. If the maxim that Christianity is part of the common law is dead, other credos reflected in new maxims inevitably must take its place. No state, and especially no state whose jurisdiction is expanding into realms traditionally overseen by other social powers—can long survive without the consecration of its law.

July 18, 2014 in DeGirolami, Marc | Permalink

Thursday, July 17, 2014

Some Notes on the Libertas Project's Religious Freedom Workshop

I am just back from passing a wonderful few days of fellowship and reflection at the Libertas Project's workshop on religious freedom, hosted by the gracious and erudite Michael Moreland at Villanova Law School and sponsored by the generous Templeton Foundation. Together with other MOJ denizens Kevin Walsh and Michael Scaperlanda, I had the pleasure of talking together with a terrific group of learned political theorists, historians, theologians, and law professors about various issues--old and new--concerning the historical trajectory and current condition of the right of religious freedom.

Zak Calo and I had the privilege of moderating the seven sessions of the workshop. And the three of us--Michael, Zak, and I--worked together to assemble a panoramic set of readings to direct the group's attentions and reflections:

  • Chapters from Brad Gregory's The Unintended Reformation and Mark Lilla's The Stillborn God kicked things off
  • A historical session on Burke, the relationship of establishment and regimes of religious toleration, and the intellectual history of the maxim, "Christianity is part of the common law"
  • A session that included readings by Murray and Niebuhr set against United States v. Seeger
  • A session that considered Pope Benedict XVI's Regensburg Address, Micah Schwartzman's article about the moral justifiability of religion's special constitutional protection, and Town of Greece v. Galloway
  • And finally a few sessions devoted to Steve Smith's recent book, The Rise and Decline of American Religious Freedom, with applications to and speculations about various contemporary controversies

In all it was an extremely successful and productive event bringing together a broad range of disciplinary expertise and insight. I'll have a bit more to say about some of the more particular subjects that interested me, but for now just want to congratulate Michael on organizing this excellent conference.

July 17, 2014 in DeGirolami, Marc | Permalink

Monday, July 14, 2014

Shiffrin on Hobby Lobby

First Amendment scholar Steven Shiffrin has a typically thoughtful post on the Hobby Lobby decision. Part of what makes the post so good is that it follows from Steve’s own longstanding and (to me) persuasive criticisms of the extraordinary lengths to which we are prepared to recognize rights of free speech. Parenthetically, the last time I checked, Steve is not particularly well-known for his dyed-in-the-wool conservatism. But setting aside that rather tedious ideological point, it is quite striking to see the expansive interpretation of the rights of speech (whatever the source–constitutional or statutory) in conjunction with what critics of decisions like Hobby Lobby argue should be a narrowing of the rights of religious freedom. Steven goes through a few of the issues, but among the best parts of Steve’s post is the following:

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim….

Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

July 14, 2014 in DeGirolami, Marc | Permalink

Saturday, July 12, 2014

Tragedy and Irony: Constitutional System, Political Suasion, and History (ADDENDUM Appended)

Here's another one for the Berg-DeGirolami exchange on the subject. For previous entries, see this, this, this, and this from my buddy Tom, and this and this from me. This post focuses on matters of constitutional system, political suasion, and my own appeal to history. 

But before getting to that, I want to address the much less central attitudinal or dispositional point about clever detachment. Tom's interlocutor interprets the passage I quoted from Shaffer in a very creative and appealing way, and Tom also notes that the ironic disposition can be turned inward as well. I don't wish to contest any of these points. I am not a Niebuhr scholar, and these are elegant defenses against my criticism. I guess the reason for my criticism is that I thought it was an important part of the ironic approach to point out to others that that their viewpoints and outlooks are partial and often incapable of seeing what's really true, that they have missed some self-deflating hypocrisy in their own position, and that if they only saw the missing piece, they'd be much more reasonable and would probably alter their views on some deeply held matter. If I have stated this view correctly (Tom, please tell me if not), whatever its merits, this is different than a tragic approach, which begins with the presumption that differences of opinion on deep questions among contestants really are what the contestants say they are, and then goes about explaining why they are so intractable. But I am happy to accept the rejoinder that tragedians can exhibit their own sins. Almost certainly one of these is a too-quick-and-easy pessimistic retreat. 

Onto more substantive matters.

1. Constitutional System: the Abstract and the Particular.

You say that you doubt that a tragic approach reflects "our constitutional system." The reason is that there is a shared, core consensus about certain basics of constitutional rights. Of my skepticism about deep, shared attachments, you write: "The same things could be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other side's ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise?" 

It is instructive (and sad, at least to me) that you must move so quickly away from religious freedom and to the freedom of speech. That move suggests that perhaps the ambit of tragedy is expanding, as the common core that you reference inexorably diminishes seemingly by the year. And for the first time at least since I have been writing (not a long time, I admit!), I am seeing serious arguments made by serious scholars who are contesting the core values of the freedom of speech as well. In a very few years, I would not be surprised in the least to see that these arguments (like those about religious freedom) have become more mainstream as well.

But I think I can agree with the basic point you are making, even as to religious freedom, if phrased in something like this way (I make the fuller argument in Chapter 4 of my book): It is quite possible to decide whether a certain set of values corresponding to a constitutional right (like the freedom of speech) is good in the abstract, without being able to decide in advance whether it is powerful enough in a specific situation to defeat another conflicting value. But it is only in the value's embodiment in a particular, real-world struggle that we can make judgments about how strong it really is. Take values like equality, law-abidingness, autonomy, the authority of conscience, liberty, and tolerance.

Continue reading

July 12, 2014 in DeGirolami, Marc | Permalink

Thursday, July 10, 2014

The Connection of Separationism and Radically Limited Government

In rereading a wonderful piece by Professor Michael McConnell about Edmund Burke’s view of the relationship between an established religion and a regime of toleration of religion, I came across this deeply insightful discussion of the close connection of a separationist idea of religion and government (as envisioned by Thomas Jefferson, for example) and the idea that government itself had very limited functions in the first place:

There is a close, but generally unrecognized, connection between the idea of the “Wall of Separation” and the idea of a radically limited government. Once government shakes off its limited role and concerns itself with the general welfare of the people, including their cultural and intellectual lives, it has leapt the “Wall” and entered the traditional sphere of religion. In contrast to many of our Founders, Burke had a more modern conception of the jurisdiction of the state, which did not permit him the easy answer of a “Wall of Separation.” If the government is “a partnership in all science; a partnership in all art; a partnership in every virtue and in all perfection,” then it necessarily will be conveying a collective teaching on science, art, virtue, and perfection (whether we label the teaching a “religion” or not). It follows not that an establishment is desirable, but that it is inescapable. Some sort of opinions will necessarily guide the state in its “superintending control over…the publicly propagated doctrines of men.” If the Jeffersonian-Madisonian ideal of the limited state is abandoned as naive or outmoded, then the serious questions become how to protect against arbitrary or tyrannical use of this power and how to respect the legitimate rights of those who disagree with the official orthodoxy.

Michael W. McConnell, Establishment and Toleration in Edmund Burke’s ‘Constitution of Freedom,’ 1995 Supreme Court Review 393, 444-45 (with citations to Burke’s Reflections on the Revolution in France and his Speech on the Petition of the Unitarians).

July 10, 2014 in DeGirolami, Marc | Permalink

Sunday, July 6, 2014

Originalist Fusionism

Soon I will return to spar a bit with Tom about irony and the barbarian hordes in the thoughtful middle.

But first, here's something for the originalism debates. The success of original meaning in displacing original intent as the basis for originalist jurisprudence is well known. Original meaning is widely thought to avoid some of the methodological difficulties associated with original intention. And several theorists believe that original meaning is both more politically legitimate and truer to the activity of legal interpretation than original intention.

Yet recently, something of an intentionalist revival has come on the scene. Note that the revival is almost always inclusive of original meaning: the claim is not the mirror image of the new originalist claim--i.e., that original meaning should displace original intention completely. Instead, it is that the exclusion of original intention entirely either leaves originalism incomplete or has had some other ill effects on originalism. The new intentionalism therefore could be plausibly described as a fusionist project--bringing together considerations of original meaning and original intent as both relevant.

Exhibit A: Donald Drakeman's and Joel Alicea's work on the limits of the new originalism. What happens when originalist materials point to two or more equally persuasive original public meanings?  The authors discuss a case from 1796 -- Hylton v. United States -- which involved the constitutionality of a federal tax on carriages. The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South. The case pitted Hamilton against Madison (who had argued against the tax's constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and "what to do when the best evidence of contemporary usage points in two directions."  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources -- dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the "foreign Lexicons" of "consolidated" as opposed to "confederated" governments, commentaries, poems, ratification materials, congressional debates, and so on. Hamilton won the day, arguing that Adam Smith's definition of a tax in The Wealth of Nations "was probably contemplated . . . by [the] Convention."  The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers' intentions.  The reason for this focus is best summarized by Justice Paterson: "the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain."  And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings.  The authors call it original intent as tiebreaker: "when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question 'What were the framers actually trying to accomplish in using this language?' rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?" And it might be quite common that originalist materials would point to two or more plausible meanings of a particular clause. See, for example, the Establishment Clause.

Exhibit B: Steve Smith's new post at the Liberty Law blog on the shortcomings of the new originalism. Smith focuses on the new originalism's complete dissociation of original meaning and original expected applications, which he argues has had the effect of depriving originalism of some of its central political virtue. He writes: 

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean.

Smith suggests at the end of the piece that it might be good for "some new movement to emerge devoted to the true criterion for constitutional interpretation," and he refers to an unpublished paper of his dealing with a "maker-meaning nexus." I haven't read the piece, but it sounds very much like a kind of originalist fusionism. One might even say that something like original expected applications (drawn from intentionalist sources) could be used as a side-constraint on original meaning. That side-constraint could operate only in cases of ambiguity (a la Alicea/Drakeman) or as a general restraint on it.

I could list other exhibits, and there are other important intentionalist champions out there, probably none more interesting that Richard Ekins (though my tentative sense, subject I hope to reader correction, is that Professor Ekins's writing has not taken a position on intentionalism in the originalism debates). But I wonder whether originalist fusionism (or originalist fusionisms of various kinds) might be on the way.

July 6, 2014 in DeGirolami, Marc | Permalink