The Essential Meaningless of the “Original Intent/Original Meaning” Distinction

In my experience, almost any discussion (including this one) of “originalism,” somebody will bring up a distinction between “original intent” and “original meaning.” This argument was made prominently in Robert Bork’s The Tempting of America, and at least since then originalists have generally try to argue that they believe in the latter rather than the former. On its face, the distinction makes sense — it’s more plausible to say that we’re bound by what the framers and ratifiers of constitutional provisions wrote than what they subjectively expected. But it seems to me that — obviously unserious arguments like Steve King’s “no matter what’s in the Constitution it couldn’t apply to Mexicans” aside — it’s a distinction largely without a difference. Not only does “original meaning” not really solve any of the problems of originalism (most prominently, indeterminacy and normative unattractiveness), it essentially relies on the same kinds of evidence.

As it happens, for another of the series of papers I’m doing with djw about judicial review and democratic theory, I’ve been reading Randy Barnett’s Restoring the Lost Constitution. In the book, Barnett not only makes a case for the importance of the distinction but presents it explicitly as a road-to-Damascus story: he had always rejected originalism, but once he understood it to mean “public meanings” rather than “original intent,” he became a convert. Despite this, it’s not really clear what methodological differences are involved. For the most part, to determine the meaning of constitutional provisions Barnett uses the same sources — the Federalist, statements of prominent framers, etc. — that you would use if you were trying to determine original “intent” rather than “meaning.” And when you get down to cases, such evidence is almost never sufficient to establish a genuine widely shared “public meaning” that could be useful in resolving a constitutional dispute of any interest.

To take an example, let’s consider a case where I’m sympathetic to Barnett’s bottom line — his discussion of the Privileges or Immunities clause of the 14th Amendment. Like me and most other people who have considered the issue today, Barnett finds the reasoning of the majority opinion in the Slaughterhouse Cases — which permanently gutted the provision — unpersuasive. In addition, Barnett argues that Miller’s majority opinion “set aside” the original meaning of the clause. (p. 195) What is the evidence for this? Barnett relies heavily on the statements of John Bingham (of Ohio, not New York as Barnett claims), the amendment’s primary author, and also refers to more general claims about the intent of Congress from the dissenting opinions.   If we’re talking about “public meaning,” though, this evidence is inadequate.  If we are bound by meanings rather than intent, Bingham’s statements mean little absent evidence that they were almost universally shared by the many other federal and state legislators who voted to ratify the amendments, as well as the public at large. Barnett does not provide this evidence, and he also doesn’t confront the extensive evidence presented in the ur-text of originalism (Berger’s Government By Judiciary) that Bingham’s sentiments were largely anomalous even among members of Congress. Bingham’s evaluation of the 14th Amendment is more attractive to both Barnett and myself, but no member of Congress can establish a “public meaning,” and if anything Bingham’s interpretation of the implications of the text he wrote is a minority one.

Indeed, I would argue that the claim that the Slaughterhouse Cases set aside the “original meaning” is virtually self-refuting. If the decision had been rendered by a Court dominated by Southern Democrats decades after the fact, that would be one thing. But the holding was the product of a Republican-dominated Court less than a decade after the 14th Amendment was ratified. (The Lincoln and Grant appointees split 4-4, with the lone Democratic holdover providing the margin for the majority.) The closely divided Court provides definitive evidence that there was no authoritative “original meaning” of the Privileges or Immunities clause. The broad language of the amendment concealed sharp divisions within even the dominant governing coalition of the time.

So, essentially, I think the “original meaning” has the same problems in practice as any other form of originalism — the evidence presented is almost always selective and inconclusive, it does little to constrain judges, and to the extent that it does provide a constraint it leads to outcomes that most will consider normatively unacceptable.