Newsgroups: bit.listserv.politics
Date:         Thu, 31 Dec 1992 12:19:48 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      A taxonomy of Originalisms

Here is my report on some recent research on Original Intent.
I can give some references, too, if anyone's interested.

I guess the most helpful thing I can think of is to set up the taxonomy
of Originalist views. It turns out that there is quite a variety. Which
kind you like depends on your answers to some watershed questions, as
follows.

1. Thayer's Rule.
James Bradley Thayer demanded that courts should not hold an act of the
political branches invalid "unless its violation of the constitution is,
in their judgment, clear, complete, and unmistakable."
This rule, though advocated by some contemporary Originalists, is not
very much in the spirit of Originalism, since it would result in judges
acting AGAINST their best judgment of what the original intent of the
Constitution was, if they are not absolutely certain in that judgment.

2. Textual Literalism vs. Psychological Intent.
Textual Literalism tells us to follow the literal meaning of a
provision. It is associated with Originalism, but like Thayer's Rule it
cuts against the spirit. A literal reading of the first amendment
protection of speech is pretty clearly not what the framers (or anyone
else) had in mind at the time of framing (or ratification).
Psychological Intent tells us to follow the propositions or
interpretations that the framers (or someone else) had in mind when they
framed a provision (or voted for it, depending on whose intentions
count).

3. The Role of Precedent.
Really strict or strong Originalists place virtually no weight on
precedent. If a precedent incorrectly interpreted original intent, then
it is simply mistaken and should be overturned. Not too many
Originalists are that strict these days. They tend to accord some weight
to precedent. So, for example, even if Brown v. Board of Ed. miscontrued
the original intent of Equal Protection, most current Originalists think
that it should not be overturned.

4. Whose Intent?
Among Psychological Intent Originalists, there is a variety of positions
according to whose psychology is deemed to be important. Here are the
most common candidates. (I am focusing on constitutional
rather than statutory intepretation; the latter gets more complicated.)

   a. Framers
   b. Ratifiers
   c. Ratifiers who voted in favor of ratification
   d. The general public at the time of ratification
   e. The Drafters of the provision.

5. Intention Voting Rules
If you are a Psychological Intent theorist, you must, no matter
which of the options in (4) you choose, provide some method of
Intention Voting. The reason should be clear. There is no
guarantee that all of the framers, or ratifiers, or whomever,
had the same intention in mind. Unless we accept the dubious
idea that groups have intentions themselves, we have to have
a way of agglomerating the varying intentions of the members
of the groups into a single intent.
Majoritarian rules face the problem that there may well be
no majority, since there are so many possible interpretations
of lots of important clauses. Plurality rules fare somewhat
better, but face their own problems.
Richard Kay suggests a near-unanimity rule. Suppose that
two thirds of the framers of the fourth amendment thought
that it would be an "unreasonable search and seizure" for
police to break down the door of your house without a warrant
to make a felony arrest. Two thirds is not close enough to
unanimity. So such an arrest would not be "unreasonable"
according to Kay. The minority of intentions would win by
default. This strikes me as a bizarre theory, but I'm
not in a good position to judge since I have little
sympathy for Originalism in the first place.
(Nabokov pointed out once that he would be a very bad
reviewer of children's literature, since he hates all of it.)

6. Levels of Intention
This is a difficult issue to explain, but it is crucially important. I
can best explain it by a couple of examples. The first is a real life
example from Brown vs. Board of Ed.
Suppose we think that the framers of the fourteenth amendment never
expected or intended it to require integration of public schools
(probably true). But we think that is because they would have believed
that students could be given equal education in segregated schools. We
now think they were mistaken in this second belief. And, we think that
if they realized their mistake, they would have intended that Equal
Protection mandate integration.
What, then, did the framers intend with respect to Brown v. Board? It
depends on which level of intent we focus on. If we focus on the
specific level, we conclude that they did not intend to bar segregated
public schools. If we focus on the more general, or abstract level, we
conclude that they intended to bar anything that in fact stands in the
way of equal treatment, which segregation does.
A more fanciful example is clearer, I think. Suppose a certain statute
mandates FDA monitoring of "toxic substances." The framers of the
statute did not consider asbestos to be toxic. But we now know that it
is toxic. If we focus on their specific intent, we should exempt
asbestos from FDA monitoring. If we focus on the more abstract level, we
should include asbestos among the monitored substances.

7. Interpretive Intentions
One way of answering the question raised in (6) is to say
that we should interpret the level of intention as the framers intended
us to interpret it. That is, we should take into account their
intentions about interpretation, as well as their intentions about
actual content of constitutional clauses. Second-order intentions, so to
speak.
Originalists tend not to say explicitly whether they think these
second-order, interpretive intentions should be treated just as the
first-order, contentful ones are treated. Very nasty logical traps lurk
around the corners of this question.


It would be a bit much to say that there is a seven dimensional
space within which we must locate various Originalist theories.
Some of the locations are excluded. But I'll say it anyway.

I guess that's all for today.

Jamie
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