Apparently, by raising questions which are always raised against originalists and asking for an originalist’s reply, I am guilty of pedantry and disparaging the debate about the Constitution. Who knew?
Other than those digs, Samuel Coffin has a thoughtful reply to my last post. He argues that I engaged in “bad originalism” in order to make originalism look bad. Of course an originalist can accommodate airmail and the air force, he says. (Samuel doesn’t address my questions about the Bill of Rights.)
Look, one of the supposed virtues of originalism is that it provides a clear answer to constitutional questions. Originalists imply that you can simply look up the constitutionality of this or that law; it’s all there for you to discover. As Eric Posner writes, this makes originalism seem “simple, commonsense, and nonpartisan.” Now we discover originalism isn’t so simple. Clearly I engaged in a type of originalist logic: The framers never provided the power to do X, therefore X is unconstitutional. Apparently this is “bad originalism,” and good originalism leads to better conclusions, e.g. the air force is okay. One wonders whether liberals are the only people who engage in “motivated reasoning” (reasoning from results to principles) or whether perhaps originalists do that too—starting from results that they know they have to endorse in order to avoid looking ridiculous, and then constructing their constitutional theory to accommodate those results.
There are basically two species of originalism. The first is original-intent originalism, which says the Constitution means whatever the authors intended it to mean. Did the authors intend to give Congress power to establish an air force? To prohibit it from conducting warrantless wiretaps? Surely not! This is apparently “bad originalism.”
The second originalist theory is original-public-meaning originalism. This theory says the Constitution means whatever the general public would have understood it to mean when they ratified it. This seems to be the theory under which Professor Rappaport, whom Samuel quotes, is operating.
Professor Rappaport’s reply makes my point for me. He says:
“The Army and Navy are not limited by the actual or the type of weapons that were employed in 1789. There is no reason to believe that the terms “Army” or “Navy” would have been understood this way. [Note the appeal to original public meaning.] Just as new technologies such as balloons and canons would have been easily assimilated into the Army without a second thought about whether they were really part of the Army, so could airplanes and jets.”
So the air force has what Samuel calls “an underlying basis in the constitution.” The Constitution would have been understood to mean that Congress may legitimately provide for mail delivery, the armed forces, etc., using whatever means are appropriate. Now we are extracting a goal or principle from the actual words of the Constitution, or at the very least, we are assuming that the public of 1787 would have extracted goals and principles. The Constitution didn’t mean post offices and post roads, even though that’s what it said. It meant mail delivery.
Now, what about the Commerce Clause? What goal or principle does that affirm? I’m sure the historians don’t fully agree on this subject. Is it unreasonable to suggest that the Commerce Clause stands for the proposition that Congress may regulate the national (aka interstate) economy in the national interest? Over 100 law professors don’t think so. Yesterday they released a letter stating, “One of the Framers’ primary goals was to give Congress the power to regulate matters of national economic significance because states individually could not effectively manage them on their own.”
Maybe this is bad history; I’m not really qualified to say. But my point is that, if originalism can accommodate the air force because we’re supposed to abstract the text away and look at the goals and principles, then a plausible case can be made that originalism permits a broad reading of the Commerce Clause, the General Welfare Clause, the Necessary and Proper Clause. It all depends on how you reconstruct the goals and principles that the public of 1787 was affirming. So now originalism, which is all about finding clear and unambiguous answers, involves a messy historical debate which no side can ever definitively win. To resolve the debate, judges and everyone else will inevitably be informed by their own personal preferences—which was supposedly the Warren Court’s sin, against which originalism was a reaction.
As for Tom Coburn’s hypothetical about the government forcing people to eat vegetables and exercise, I would say this: The choice not to eat vegetables and not to exercise may have some long-term impact on the national economy, but the choice not to get health insurance has a much larger and more direct impact (unless you also forgo health care, which almost nobody would actually do). I’d also point out that the decision not to purchase health insurance is an economic decision with immediate economic consequences for the individual and society, whereas dieting and exercising are not economic acts, no matter the effects they might have on economic matters way down the road.
