Originalist issues

Debates among constitutional scholars on what constitutes an "originalist" method or position on questions of constitutional interpretation or construction are too often conducted on a high level of abstraction that might be appropriate for discussion of all constitutions of all polities over all time, but most of the Constitution for the United States is reasonably unambiguous, and for the unambiguous parts most discussants would admit to being originalist, in the sense of holding the language has a fixed meaning as of the time of ratification, and that such meaning is binding on courts today. If we want to find an originalist method of interpretation or construction for that Constitution, we need to examine each term or clause that is disputed, try to discern the original intent, understanding, or public or legal meaning, and analyze what we are doing when we do that.

Interpretation or construction is a kind of forensic investigation, not unlike solving a crime. As history or linguistic detectives we find meaning not by the application of a few simple rules, but by discerning clues that allow us to narrow the range of possibilities until we are reasonably sure we can make a decision about the case before us: Was there a crime, and whodunit?

Summary of some disputed text and a key issue for each, that should cover most of the investigatory methods one might properly apply:

1. Legislative powers ... vested. What are legislative powers and may they be effectively delegated to administrative or judicial agents? May legislative, executive, or judicial powers be used to indirectly induce behavior that Congress does not have the power to legislate directly?

2. Direct taxes. What taxes are direct and what indirect?

3. Regulations. What are the bounds on the power to "regulate". Plenary or only for certain purposes? Are penal powers implied?

4. General welfare. Restriction on power to tax and spend, or a power to promote?

5. Commerce. Tangible commodities traded or all economic activity?

6. Coin money and regulate value. Only gold or silver, or also debt instruments? Is power to make something legal tender on state territory implied?

7. Limited times. Beyond the life of the inventor or author, or only for long enough to recoup investment? Does power to promote imply penal powers?

8. Declare war, marque and reprisal. Does authorization to use force qualify? Is it piracy to act without such authority?

9. Raise ... Armies. Does that authorize conscription, or only hiring?

10. Militia. Is it any defense activity, invoked by anyone aware of a threat, or only state-organized armed groups? May keeping militia ready be optional, or is is a duty, like elections? Is power to regulate plenary, or only in ways that make militia more effective? Is anyone subject to a law if he does not have the right to help enforce it? Does it include duty of independent of constitutional review for any legal issue by any person?

11. Places purchased. What are the limits on legislative authority for federal enclaves, must cessions specify metes and bounds of each parcel, do residents cease to be citizens of ceding states, and is there a federal power of eminent domain, or only a state power?

12. Necessary and proper for carrying into Execution. Only incidental to making an effort, or whatever is convenient to get a desired outcome?

13. Habeas corpus. Are all prerogative writs presumed to be remedies courts must accord oyer and terminer?

14. Bill of attainder, ex post facto. Does prohibition extend to all legislative disablements of rights? Does it forbid prosecution for common law crimes?

15. Title of nobility. Does prohibition extend to prohibit any official immunity or special privileges of government officials and agents?

16. Natural born citizen. Does it mean born on U.S. soil, or can it include naturalized at birth by statute, and only on incorporated territory? What counts as proof of it?

17. Laws be faithfully executed. Does it require unconstitutional statutes or court orders be resisted?

18. Bribery, or other high Crimes and Misdemeanors. As no power to punish these is delegated to Congress, must they be either state charges or committed in federal enclaves, or are they only grounds for removal? Do they include any violations of the oath of office, abuse of authority, dereliction of duty, failure to supervise, or conduct unbecoming?

19. During good behavior. May judges be removed by ordinary trial or hearing on a writ of quo warranto, and not just by impeachment and removal by Congress?

20. Judicial power. What is it and may it be delegated to legislative or executive agents?

21. Cases and controversies. Include all judicial questions for which relief, including declaratory or injunctive, may be granted, or only for those with standing from having or expecting personal injury?

22. Arising under this Constitution. Does that extend the jurisdiction of federal courts to cases involving the rights recognized in the Bill of Rights between a citizen and his state?

23. Trial of all crimes ... by Jury. Is that a mandate, even if the defendant pleads guilty? Must it be a jury of twelve and require a unanimous verdict to convict?

24. Where ... committed. Where the defendant's head was at the moment the act became irreversible, or wherever he might have been before and after, or wherever the effects occurred?

25. Aid and comfort. Does that include undeclared enemies? Disclosing classified information?

26. Full faith and credit. What does this mean? Must a state that prohibits a kind of contract recognize that contract made in another state?

27. Privileges and immunities. What is and is not included in that?

28. Rules and Regulations ... Territory ... Property. Does that imply penal powers legislated directly, or only the power to organize territorial governments with such powers exercised by elected territorial officials?

29. Republican form ... protect ... against invasion. What is a "republican form" and how is it to be guaranteed? Does this require effective border protection?

30. Treaties ... supreme Law. May a treaty require the exercise of powers not delegated to Congress, or be a mandate on exercises of powers of the states?

31. Judicial Officers ... oath. Is binding stare decisis compatible with the written Constitution being supreme law? Are jurors also judicial officers?

32. Religion. What is it? Any belief system, including constitutionalism?

33. Speech. Any emission of a message? Money to pay for it? Does it imply right to anonymity?

34. Press. Any dissemination of a message? Money to pay for it? Does it imply right to anonymity?

35. Assemble. Subject to time, place, and manner regulations, and if so, by what level of government?

36. Petition. Right not to be penalized, or also not to be impeded? Access to grand jury? Implies right to get an answer?

37. Keep and bear arms. May weapons be restricted, and if so, how, or do people have a right to anything they may need to win a war?

37. Quartering. Does the prohibition extend to demanding the use of space for official purposes?

39. Unreasonable searches and seizures ... probable cause. What are the bounds on discretion on these? Must warrants be presented and subjects be allowed to verify them?

40. Grand jury. How many, and serving how many? For what must there be indictment, must it decide jurisdiction, must it be open to complaints by anyone, and may it authorize anyone to prosecute?

41. Twice put in jeopardy. May different jurisdictions prosecute for the same act, or must penal jurisdictions be mutually exclusive?

42. Due process of law. What is it, and what are the bounds on discretion? Does it include minimum standards of protection? What procedures are essential? Does it commence with initial official contact?

43. Taken for public use, without just compensation. What is property? What is public use, and for how long must it continue before being sold to a private party? What is just compensation? When can regulatory restrictions be constructive takings? Does the federal government have power of eminent domain on state territory?

44. Speedy trial. How long may the accused be held without trial?

45. Public trial. Must cameras be allowed?

46. Impartial jury. Does this require the right of parties to argue all issues of law to the jury?

47. Compulsory ... witnesses. May witnesses refuse to testify under oath or affirmation?

48. Assistance of counsel. Only members of the bar, or anyone the defendant may choose? Must it be paid for by the government if defendant is unable to do so?

49. Exceed twenty dollars. What is the definition of "dollar" that applies here? Can we get this enforced?

50. Cruel and unusual punishments. What are they? What are the bounds on discretion?

51. Unenumerated rights. What are they? Do they include a right to a presumption of nonauthority, and a right to the information and means to effectively supervise public officials and agents?

52. Powers not delegated. Are powers to be interpreted as strictly as the text allows, or as broadly?

53. Privileges or immunities. Same meaning in 1868 as in 1787, or different? Extend federal court jurisdiction to state cases involving any or all of the rights recognized in the Bill of Rights, including the Ninth and Tenth Amendments?

54. Equal protection. Equal effort or equal outcomes?

55. Enforce, by appropriate legislation. Extends only to state action, or to private action as well? Does it overturn 11th Amendment and remove sovereign immunity for states or their officials?

56. Incomes. What is income? Does it only include earnings on land or capital, or does it include compensation for labor? Was the income tax amendment ratified?

57. Remedies. What are the remedies if mandates are not done, such as writs of election? Or remedies are impeded by cost, procedure, official immunities, or service monopolies like state bars? What are political questions and what are the remedies if elections are rigged?

The quest for method should begin with the common law rules of construction that prevailed in 1787, one of the most important of which was expressed in the maxims:
Potestas stricte interpretatur. A power is strictly interpreted.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
If those are granted, much of the rest is straightforward.


S said...

Thanks for a great post! This is very helpful.

The final points you make are exactly correct IMHO.

The overriding purpose of the US Constitution was to create a necessary evil. Thus, any power must be strictly construed.

Green Elms said...

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