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.