Original Intent Originalism Reply
I write in response to John A. Bruegger's comments[1] on my Article[2] published in Volume 61, Issue 2 of the Washburn Law Journal. I was delighted that my work received attention but must correct some statements that he makes about my Article. My comments are directed solely to those statements.
Bruegger contends that "[a]lthough Boykin argues several points, all of them can be seen as a view of the nature of language that was known but rejected by the Founders when drafting the Constitution."[3] My principal argument is not one about the nature of language and it is not about the Founders' view of language. In fact, I argue that the key flaw with public meaning originalism is its claim that constitutional interpretation is primarily a problem of interpreting language.[4] Original-intent originalism, on the other hand, looks to the purpose of a provision when it was adopted to understand the purposes to which it can properly be put.[5] I quote James Madison at the beginning of the Article as follows:
As there are legal rules for interpreting laws, there must be analogous rules for interpreting const[itutions] and among the obvious and just guides applicable to the Const[itution] of the U. S. may be mentioned—
Madison hereby describes original-intent originalism. Blackstone, as Bruegger also notes, stated that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it."[7] Original-intent originalism as it appears in my account was understood by Madison and Blackstone and was familiar to eighteenth-century lawyers in the United States.
The subject of Bruegger's quotations from Hobbes,[8] Locke,[9] Madison,[10] and Blackstone[11] is the problem of the imprecision of language in the interpretation of law.[12] It is uncontroversial that the United States Constitution contains much broad, imprecise, and general language. This is why the original-intent originalism I have defended looks to the purposes sought to be accomplished by constitutional provisions, as Madison and Blackstone would also have interpreters of law do. Language alone will often be insufficient to discover these, so the historical sources that enable us to understand what problems the Framers and Ratifiers believed they were trying to solve, and how they were trying to solve them by means of the Constitution, are what enables us to interpret those provisions. While public meaning originalists and textualists rely on the interpretation of constitutional language to understand the meaning of its provisions, I argue that instead we must look beyond language to the practical purposes for which provisions were adopted to find their meaning. It is a focus on those practical purposes, rather than a reliance upon constitutional language, that is what I mean by original-intent originalism. Nowhere do I argue that language alone is sufficient to do this, and I wrote the Article expressly to reject that idea.
My discussion of the philosophy of language in the Article is directed against the contemporary nonoriginalist argument that the meaning of a document can change over time with social and attitudinal change. It is not an argument about what the Framers or Ratifiers believed about language or the Constitution. Bruegger states that I have relied "on Hirsch, Wittgenstein, Schleiermacher, and Searle, all of whom wrote their philosophies in the twentieth century."[13] Friedrich Schleiermacher died in 1834, and he wrote his important work on hermeneutics in the early nineteenth century. Because Schleiermacher laid the foundations for modern hermeneutics, his work influenced diverse authors, particularly Hirsch. I rely on these authors to counter the argument presented by contemporary nonoriginalists who maintain, not that language in the law or the Constitution is imprecise, but that the meaning of the Constitution actually changes over time due to changing values and social conditions. Where the theory of language is concerned, I argue that the theory of language on which today's nonoriginalists rely to insist that the meaning of the Constitution changes is, in fact, an incoherent idea. The original purpose, and thus the meaning, of a constitutional provision does not change because we want it to. If we want government to pursue ends not authorized by the existing Constitution, Article V gives us a means to do so. However, until we do so, the ends authorized by the Constitution remain what was agreed upon when each provision was adopted. But this is not a theory of language; it is a theory of law.
As Bruegger indicates, the problem of imprecise language in the law was known to the founding generation in the United States, but that is not the problem I address in the Article. Specifically, I do not argue that the founding generation had a theory of language reflected in the Constitution. On the contrary, I argue that the Framers and Ratifiers were people who negotiated and adopted an agreement to solve known practical problems, and it is those historical problems to which we should look when interpreting the agreement they reached. Bruegger's objections might plausibly be directed against the public meaning variety of originalism that has become its dominant expression, but they are not related to what I have to say about original-intent originalism.
Scott A. Boykin, M.T.S., Spring Hill College, J.D., University of Alabama, Ph.D., Tulane University. Professor of Political Science, Georgia Gwinnett College, Lawrenceville, Georgia.
[1]. See John A. Bruegger, Original-Intent Originalism, Semantic Instability, and the Impact of Linguistics on American Constitutionalism: A Reply to Professor Boykin, 61 Washburn L.J. 379 (2022).
[2]. See Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021)
[3]. See Bruegger, supra note 1, at 379.
[4]. See Boykin, supra note 2, at 262–68; see also Keith E. Wittington, Constitutional Interpretation 50–61 (1999) (discussing public meaning originalism).
[5]. Boykin, supra note 2, at 251–62.
[6]. Letter from James Madison to Martin L. Hurlbert (May 1, 1830), in 9 The Writings of James Madison: Comprising His Public Papers and His Private Correspondence, Including Numerous Letters and Documents Now for the First Time Printed 372 (Gaillard Hunt ed., 1910).
[7]. William Blackstone, The Oxford Edition of Blackstone's Commentaries on the Laws of England: Book I: Of the Rights of Persons 47 (Wilfrid Prest ed., Oxford Univ. Press, 2016) (1765); Bruegger, supra note 1, at 387.
[8]. Bruegger, supra note 1, at 382.
[12]. Bruegger's quote from Montesquieu addresses the philosophical ambiguity of the meaning of the term "liberty" and is directed to a different kind of problem. Id. at 385.