Original Intent And Original Meaning [And Martin Luther King]

Anyone interested in following the contours of high brow Constitutional interpretation will want to read several remarkable recent posts by Larry Solum and Randy Barnett. Rather than attempt to summarize them here, I am going to exploit them instead, which means anyone wondering whether my appropriation of one of their insights is fair will have to read their originals.

Very briefly (and again, this is not a summary), about ten days ago Larry Solum posted a fascinating long post on the current state of play regarding the theory of originalism. He discussed the increasingly important distinction between “original intention” and “original meaning.” An overly simple (but I hope not inaccurate) way of illustrating this sometimes elusive distinction is to look at the debate over how to interpret the 8th Amendment’s ban on cruel and unusual punishment. An original intent interpretation would say that the ban was limited to the specific punishments that those who wrote and then approved the Amendment in fact thought were cruel and unusual (you can see the problem already of determining a collective intention). An original meaning interpretation would also rely on historical evidence, but rather than asking what punishments the framers (for lack of a better term) had in mind it would examine the contemporary understanding of the words “cruel” and “unusual.” On this view, a particular punishment might well be unconstitutional even if the framers never considered it, so long as it fell within 18th century (not our) understanding of what those words mean.

Several days before Larry’s post, Randy Barnett, who is certainly one of the most impressive advocates of and practitioners of the new original meaning scholarship, posted a short but incisive discussion of the same intent v. meaning distinction, calling it “The Next Big Issue.” Randy explained that “[o]riginally [he] was not an originalist,” but eventually he

adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed.

Randy’s post elicited a reply from Caltech philosopher Dominic Murphy, which he quoted and responded to here. This post, like the others, is worth looking at, as are Larry Solum’s comments on the Barnett – Murphy exchange here.

The best place to look for a full discussion of this issue, and an impressive example of the understanding to which it can lead, is Randy Barnett’s impressive new book, Restoring the Lost Constitution. I should add that yesterday my wife and I drove over the mountains and up the Valley to Lexington to hear Randy discuss his book in a talk sponsored by the Federalist Society at the Washington and Lee University law school, and his performance was dazzling. (We could have driven a shorter distance to hear him at UVa the day before, but we were still iced in.) Randy has been posting his book tour itinerary on Volokh, and anyone who can should try to attend one of his sessions.

So, what does all of this have to do with Martin Luther King? Here is where I attempt to appropriate what Larry and Randy have contributed, and I should emphasize that this is my argument, not theirs.

In a recent post discussing some of the fallout from Martin Luther King’s birthday, I asked “What Do We Honor When We Honor Doctor King? (And Who Are ‘We?’)” There had been many protests of President Bush laying a wreath on King’s grave, nearly all of them criticizing him for betraying King by his opposition to racial preferences. Indeed, nothing seems to send preferentialists around the bend and over the top faster than critics of preferences quoting King’s “I Have A Dream” speech, as we always do.

And they always respond with one version or another of “if King were alive today” he would be a strong advocate of racial preferences. I have some reservations about this assertion, but on balance I suspect it is true. After all, all King’s followers, the NAACP (which had advocated a strong version of colorblindness in court for decade after decade), and virtually the entire Democratic party did an about face on colorblindness starting in the late 1960s, and there is no compelling reason to suppose that King himself would have stood against this trend.

Taking a page from the original meaning book, however, we can see that the proper response to the posthumous King’s probable position is, So what? King’s specific intent does not determine the meaning of the principle he evoked, either for his contemporaries or for subsequent generations. [P.S. It is also worth noting, however, as Randy did in his talk, that when we play the "if X were alive today..." game, we are not talking about actual intent but predicted intent, which is far different.] Of course in this case the text in question is not so dense and opaque, like “due process” or even “equal protection.” What part of wanting people to be judged by the content of their character and not the color of their skin is so difficult to understand?

Now, King’s speech is not a part of the Constitution (at least not of its text), but it has achieved a well-deserved iconic stature. It gave voice to an understanding of equality that traces it roots back at least to some of the abolitionists, that achieved partial but limited success in the Reconstruction Amendments, and that, finally, was embedded in the Civil Rights Act of 1964 in the year following King’s delivery on the Mall.

Thus I beg to differ with a commenter on my King’s birthday post linked above. Begrudgingly, “[f]or arguments sake,” she was willing “to admit the possibility that one can disagree with another’s ideals while still honoring the person.” I believe those of us who continue to resent benefits or burdens being based on skin color are honoring the meaning of Martin Luther King’s ideals much more fully than preferentialists who argue that if he were alive today he would agree with them.

Writing, as I am, about fifteen minutes from Monticello, it seems all too obvious to me that there are some ideals that are not discredited simply because their authors fail to live up to them.

Say What? (9)

  1. stu January 29, 2004 at 1:15 pm | | Reply

    Thanks. Very good post. To all the “preferentialists” (great euphanism, if only the Klan had thought of it) out there, one might ask: Would we celebrate Dr. King and take a national holiday in his honor if he had never given the “I Have a Dream Speech?” If instead, he had given in 1963, on the Mall, his “I Must Have a Preference” speech? Don’t think so.

    His words and his actions, at least through 1965-1966, inspired and shamed whites to look into themselves and change. And he did that by invoking colorblind principles. If he had instead from 1955 to 1965 shilled for preferences for blacks would there have been a Civil Rights Act of 1964 and a Voting Rights Act of 1965?

    To have succeeded as he did in changing the face of this nation, Dr. King had to occupy the moral high ground. He had not the power to impose racial equity under the law, he had to harness and use a great moral power to achieve that goal. And he did this with unparalleled success.

    Now the little men who have followed him have squandered that huge reservoir of moral capital to establish and maintain a racial spoils system–the antithesis of all that Dr. King stood for. In their desparation, they now seek to coopt the man himself in support of ideas that are altogether shabby and entirely bereft of moral force or dignity.

  2. Joe January 30, 2004 at 8:40 pm | | Reply

    “An original intent interpretation would say that the ban was limited to the specific punishments that those who wrote and then approved the Amendment in fact thought were cruel and unusual.”

    The terms after awhile get a bit confusing, but this seems to me more of an “original understanding” argument. What did the framers, that is, originally understand the phrases to mean? After all, maybe the framers intended the phrases to be vague and open-ended. If so, what they themselves thought “cruel and unusual” meant might be of limited value.

    Maybe, the “original intent” was for them to develop over time in a common law sort of way, especially given the conflicting understandings, incomplete records, and respect for the common law system present in England for hundreds of years. If so, this whole debate starts to look a bit different.

  3. Richard Nieporent January 31, 2004 at 12:55 am | | Reply

    John, I can’t believe that you would seriously consider reparations as a solution to affirmative action. This is the wrong solution from every perspective. First of all, from a purely financial consideration, it cannot be done without destroying the economy. There are approximately 30 million blacks in the country. If we were to give a “mere” $100,000 to each of them, the total cost would be 3 trillion dollars! And do you think that would settle the matter? Once you agree that reparations are warranted, what makes you think that there would not be a demand for additional payments? Like the payment of blackmail (which is an excellent analogy to reparations payments), they would come back again and again demanding additional payments. Remember, by agreeing to give reparations, you have admitted to culpability for slavery. At that point, the only question is the amount of damages. If you look at some of the calculations made as to the cost of slavery, one million dollars (i.e., a total of 30 trillion dollars) would not even begin to cover it.

    And of course, if blacks have a right to reparations, then how about the Indians? After all, we did not exactly treat them with kindness, now did we? I guarantee, there will be a long line of aggrieved groups just waiting to get their share of the loot. It would never end.

    But aside from the cost of it, the idea that people who have no relationship to slavery, such as all of the immigrants who can to this country after the end of the slavery, should be held responsible for payments is surreal. But even for the people whose ancestors that did take part in slavery, how can you hold their descendents responsible? Do we take money from the grandchildren of criminals to pay for their grandparent’s misdeeds? And of course, even when slavery existed, most of the people were not slaveholders. The bottom line is that there are no people alive today who were slaves and there are no people alive who were slaveholders. There are no perpetrators and there are no victims.

  4. John Rosenberg January 31, 2004 at 1:08 am | | Reply

    Richard, I agree actually with everything you say, which is to say that of course I don’t regard reparations as a solution to AA. The practical difficulties, if nothing else, seem insuperable. Still…, I don’t regard ransom as a solution to kidnapping either, but that’s not to say that I can’t imagine circumstance where I’d consider paying one. If we could agree on a compromise that would end preferences, I’d be willing to pay something for that.

  5. Richard Nieporent January 31, 2004 at 9:15 am | | Reply

    From your recent posts on this issue, I understand that you are not a supporter of reparations. However, the idea that by giving reparations we would be able to do away with affirmative action once and for all is sheer fantasy. As I indicated in my previous comment, by giving reparations we would be admitting guilt for something we did not do. Yes slavery was evil, and so were thousands of other things that have occurred throughout history.

    Unfortunately, we can only change the future, we cannot change the past. Giving reparations to people who were not the victims is the worst thing we can do. If you think that the welfare state did irreparable harm to generations of minorities, just wait and see the harm that this would do. Moreover, by giving reparations we would in effect be sanctioning the use of affirmative action forever. The argument that would be made was that the payment of reparations would just be making up for the wages that was not paid to the slaves. However, to make them whole, we must now compensate them for the positions and jobs that they were denied.

    Be careful what you wish for. There are always unintended consequences to any action. In this case, reparations would be the best argument FOR the use of affirmative action.

  6. StuartT January 31, 2004 at 1:44 pm | | Reply

    Richard wields a razor-edged scythe here. Even John’s pragmatic and somewhat conciliatory stance would, I lament, prove disasterous.

    Reparations are truly a Pandora’s box. And once the grievance parasites are afforded a new teat to suckle, I dare say they would fight like wolverines to keep the warm milk flowing.

  7. John Rosenberg January 31, 2004 at 4:26 pm | | Reply

    Richard and Stuart: Guys, I think you’re overreacting a bit to what I’ve said (or, more likely, I haven’t said it very clearly). In any event, don’t worry; I’m not about to offer reparations to anyone.

    All I’ve said is I’d be willing to CONSIDER a compromise that involved reparations as part of a comprehensive deal that would end racial preferences. I offer this thought as an example of something like a counterfactual fantasy. I can’t imagine a real “deal” of any kind being made. But IF the incredibly complex practicalities could be worked out (such as who would receive and who would pay — no small matters, these), I would certainly consider supporting a payment to end preferences.

  8. Hijacking A Civil Rights Hero January 16, 2012 at 1:25 pm |

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