Jamal Greene (whose great work I have blogged about here and here) poses this interesting question in an article in the George Washington symposium issue on the 100th Anniversary of Farrand’s records of the Constitutional Convention.
Today, most academic originalists and even some living constitutionalists 10 say that constitutional interpretation should proceed, first and foremost, from the original meaning of the text at issue. Even as originalism has assumed a privileged place within constitutional theory discourse, intentionalism is in a bad way. 11
Here’s the puzzle then. This Article is part of a symposium celebrating the centennial of Max Farrand’s The Records of the Constitutional Convention of 1787. 12 Farrand’s Records is the most comprehensive collection of primary documents chronicling the deliberations in Philadelphia during the summer of 1787. The Records is,along with The Federalist, one of the two main sources of the intentions of the Constitution’s drafters. Given the limited relevance of those intentions to the theories advanced by both originalists and living constitutionalists, it is a wonder why constitutional theorists should so f ˆete the anniversary of Farrand’s Records. It is a particular wonder why we should do so through an event whose keynote speaker was Justice Scalia, the person most responsible for marginalizing the relevance of the Records to modern constitutional theory
I’ll quibble a bit about his characterization of the Federalist, as the papers define a number of terms and concepts in the Constitution, which do go to original meaning. Though, it is a very specific meaning–the meaning of those who favored the ratification of the Constitution.
Scalia had this to say about the Federalist in his dialogue with John Manning.
I cite The Federalist, but not because it’s legislative history. I don’t rely on the views of its authors because they were present at the writing of the Constitution—because since they wrote it, they must know what it means. That’s not the reason. One of the authors, John Jay, did not attend the Philadelphia Convention.
Nor do I rely on The Federalist because the ratifiers must have known and agreed with it. (That’s the kind of unrealistic assumption the practitioners of legislative history use.) I rely on it because it sets forth the views of intelligent, well-informed persons of the time, which are entitled to great weight on the basis of their experience and their closeness to the process. For similar reasons, I’ll consider what Thomas Jefferson says, though he also was not present at the Constitutional Convention and though his words were most unlikely to have been before the ratifying conventions. His words won’t be conclusive, but they may supply a persuasive indication of what the Constitution meant to the people at the time. That’s quite different from legislative history.
And by the way, most if not all of my citations of The Federalist do not pertain (as legislative history ordinarily does) to the meaning of a particular word or phrase, but rather to general principles underlying the Constitution, such as the need for a unitary Executive, and the need to guard against the legislature as the most dangerous branch.
When read in combination with the writings of the Anti-Federalist papers the Federalist can be viewed as indicative of original meaning. They are really no different from other political writings of the time (most of which were anonymous, as was the tradition) aimed at understanding how the founding era viewed the new Constitution. When asked about the Federalist being advocacy papers, Scalia replied:
I don’t use The Federalist exclusively. Of course, if it’s contradicted by other evidence, I’ll see which weighs the most. I will rely on a particular essay in The Federalist if it’s persuasive—if it convincingly accounts for the text, structure, history, and tradition that are the staples of constitutional interpreta-tion. And that’s the damnable thing about legislative history. It is cited as authoritative; in our practice until recently, its weight came from the role of its authors in the legislative process, not from the persuasiveness of its content. I use The Federalist, as I said, if it’s persuasive in light of other evidence, not because it was written by key constitutional drafters who claim some sort of authority to speak for the ratifiers as a whole
But the debates of the convention are directed right at the intentions of individual members. That is so 1985 originalism.
Justice Thomas, in his McDonald opinion attempted to answer this question.
Before considering that record here, it is important to clarify its relevance. When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean.
In other words, knowing what draftsmen thought is indicative of what the public thought. Not sure if you are persuaded, but at least CT attempted to rationalize this fact.
Furthermore, the records of the Constitutional Convention are the ULTIMATE LEGISLATIVE HISTORY. Yet Scalia has no qualms in citing it. Likewise, Scalia has no problem citing the ratification debates regarding the 14th Amendment, as he did by joining Justice Alito’s plurality his opinion in McDonald v. Chicago.
I attempted to reconcile this disparity in an article I wrote way back in law school called This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, 20 Geo. Mason U. Civ. Rts. L.J. (2010) (SSRN).
From my article:
In District of Columbia v. Heller, a dissenting Justice Stevens called Justice Scalia to task for relying on historical documents subse- quent to the ratification of the Second Amendment, characterizing such statements as mired in “pitched political debates” and better characterized as “advocacy than good-faith attempts at constitutional interpretation.”166 Justice Stevens accused Justice Scalia of being hyp- ocritical for eschewing modern legislative history, while firmly embracing historical atextual sources, a lineal ancestor of modern leg- islative history.167 But is Justice Scalia being hypocritical? No.
Over time, has the nature of contemporary historical sources changed such that their reliability as indicia of original meaning has diminished? Is it possible that contemporary historical sources from earlier times are indicative of the meaning of a statute, whereas more recent contemporary sources are less indicative of the meaning of a law? As Justice Powell noted in Nixon v. Fitzgerald, not all historical sources are created equal.168 Justice Powell discounted Justice White’s dissent as relying on “fragmentary” historical sources and observed that “historical evidence must be weighed as well as cited.”169 Not all historical sources are created equally.
Although Justice Scalia has never mentioned it, he follows Justice Powell’s logic. Implicit in Justice Scalia’s reliance on some atextual sources but rejection of others is the presumption that not all historical sources are created equal.
From later in the article:
For this reason, older legislative history, where this incentive to fabricate did not exist, is more reliable than legislative history of recent vintage, where the incentive to fabricate is quite strong.189
I would argue that the Constitutional Conventions in 1787 were held in secrecy, so any incentives to fabricate were close to nill. This was not the case for the ratification debates over the 14th Amendment.
Though, Judge Easterbrook sees this secrecy as a reason not to rely on the debates.
I was asked to say a few words about the effect of Farrand’s Records on constitutional interpretation, and I actually need only one word: none. (Laughter) JUDGE EASTERBROOK: I care about the original public meaning of legal texts. What binds is the text that was approved, according to the procedures for adopting that text, and not anybody’s hopes or plans or intent. To decode meaning, it’s necessary to understand how the living interpretive community at the time the text was adopted understands, or understood, legal words. So, for my purposes, something in The Federalist or Federal Farmer or Brutus, or remarks in the ratifying convention, might shed light on how intelligent readers of legal words understood what they mean. Even the debates in the first Congress can be very helpful because they’re roughly contemporaneous with the Constitution. You need to figure out what that interpretive community understood because language—the meaning of language and its context—changes. But secret exchanges among the drafters don’t help for that purpose. Only public expressions matter. Farrand’s Records deal with secret deliberations, so they are irrelevant.
Scalia’s comments in a dialogue with John Manning about the unreliableness of modern-day legislative history simply do not apply to older legislative history:
Legislative history is not just unlikely to reflect the genuine purpose of Congress; it is increasingly likely to portray a phony purpose. The more you use legislative history, the phonier it will become. Downtown Washington law firms make it their business to create legislative history; that is a regular part of their practice. They send up statements that can be read on the floor or statements that can be inserted into committee reports. So the more we use it, the less genuine it is. It’s not that we use it because it’s there. It’s there because we use it.
So how does Greene resolve this “puzzle”?
This Article offers a solution to the puzzle. It argues, in brief, that we celebrate the centennial of Farrand’s Records for the same reason judges consistently cite the Records and The Federalist in opinions: original intent not only matters but it matters more than original meaning. And well it should. As many original-meaning originalists have themselves emphasized, the practice of resolving constitutional cases is distinct from the practice of ascertaining the meaning of the words of the Constitution. 13 The question of what a text signifies goes to the text’s meaning; the question of the degree to which it should govern cases and controversies goes to the text’s authority. 14 Many originalists implicitly acknowledge that constitutional authority, not the Constitution’s textual meaning as such, matters to modern adjudication. 15 An adjudicator who decides that the meaning of a constitutional provision is supplied by the original meaning of the words is not thereby committed to the view that she should decide cases solely on the basis of that meaning. Likewise, and less recognized, someone who believes that the subjective intentions of the eighteenth-century Framers should be authoritative in modern interpretation need not adopt any particular theory (nor even believe) that those intentions supply either the linguistic or the legal “meaning” of constitutional provisions. Original intent is disfavored as a theory of constitutional meaning but it remains a vital theory of constitutional authority.
I think I posed a similar question in law school to a Professor, and he told me that the distinction between original intent and original meaning was thin enough that the same evidence could be used for both. (These are the things we talk about at George Mason in a class dedicated to the Founders Constitution).
Very interesting work. I’ll blog about the rest of GW’s great symposium issue shortly.