Elitist and populist versions of originalism

August 19

My recent exchange with Michael Ramsey about originalism and laws banning interracial marriage turned on the point that the original meaning of the Fourteenth Amendment more clearly bans such laws if it is interpreted in accordance with the understanding held by legal elites at the time of enactment than those held by the general public. This highlights a more general divergence between different versions of originalism: some originalists adopt elitist versions of the theory, which privilege the understanding of the Constitution held by a small group of framers or legal experts, while others are more populist. This divide is often ignored, even by constitutional theorists. But it is an important issue nonetheless. There are serious arguments for both elitist and populist versions of originalism. And the difference between the two approaches has important implications for constitutional interpretation.

I. The Range of Originalist Theories.

Some versions of originalism are more elitist and others more populist. For the sake of convenience, I start with the most elitist and work my way through to the opposite side of the spectrum. For readers who may be interested, I provide citations to prominent advocates of these different views in this article.

When the modern academic debate over originalism began in the 1970s and early 1980s, most originalists were advocates of “original intent” the idea that the Constitution should be interpreted in accordance with the intentions of the people who drafted it. Original intent is probably the most elitist version of originalism. It emphasizes the views of the small group of political elites who participated in the drafting of the original Constitution and its amendments. In some cases, the original intent depends on the views of just one single person. For example, most historians agree that James Madison personally drafted the Takings Clause of the Fifth Amendment, apparently without any assistance from others. If so, Madison’s interpretation of the clause would be the only one that matters from an original intent standpoint.

In recent years, most originalists have rejected original intent in favor of “original public meaning” the theory that courts should interpret the Constitution in accordance with the way it was understood by the public at the time of ratification. But who counts as part of the relevant public? On that point, there is lots of disagreement.

Some original meaning advocates believe that the relevant meaning is that understood by knowledgeable legal elites at the time, such as jurists, legal scholars, and others expert in legal interpretation. Similarly, some hold that the relevant meaning is that understood by a hypothetical “reasonable person” who is expert in the law. For example, leading originalist legal scholars Gary Lawson and Guy Seidman posit a hypothetical “reasonable person,” whom they describe as “conversant with legal traditions and conventions of the time” as well as “highly intelligent and educated and capable of making and recognizing subtle connections and inferences.” As they themselves put it, this construct is “a formidable intellectual figure.”

Focusing on the views of actual or hypothetical legal experts is less elitist than original intent originalism. The community of legal experts is much broader than the range of people who participate in drafting parts of the Constitution. But it is still only a tiny subset of the population. Most Americans in 1787 or 1868 were not legal experts, any more than most are today. And a hypothetical “reasonable person” who possesses a high level of legal expertise is unlikely to be representative of the views of the general public (or even those of “reasonable” nonexperts).

Instead of focusing on the views of experts, some originalists emphasize those of a hypothetical “reasonable” ordinary reader of English at the time of ratification. This is a much more populist approach than the expert-focused view. But it still potentially excludes the views of people who do not take a “reasonable” approach to reading constitutional text. Depending on the definition of what counts as “reasonable,” that might still be a large fraction of the population, especially in a world where many people are highly irrational in the way they process information about political and legal issues.

Finally, many originalists simply rely on the understanding of the general public at the time of ratification, without resorting to hypothetical constructs, or limiting the inquiry to those who might be reasonable. This is the most populist approach to originalism, though on some versions it might still exclude the views of people who were not legally allowed to vote at the time of enactment (which in the 18th and 19th centuries excluded nearly all women, and a high percentage of black men).

A few originalists adopt hybrid approaches, such as John McGinnis and Michael Rappaport’s original methods originalism (which might privilege elite understandings in some cases, and popular ones in others, though the authors themselves seem to think it will more often tend towards the former).

II. Arguments for and Against Elitism.

There are serious arguments for both elitist and populist versions of originalism. The case for elitism is simple: Why should we allow constitutional interpretation to depend on the views of ordinary voters who are often highly ignorant about political and legal issues? to paraphrase Michael Ramsey, if we are interpreting a medical or engineering text, we would rely on the views of doctors or engineers over those of ignorant laypeople. And if we are interpreting a legal document, we should rely on the understanding of lawyers, judges, and other similar experts.

But there is also a strong case for the populist approach. Unlike a medical or engineering text, the Constitution derives its legitimacy (at least on many theories) from the approval of We the People. Indeed, many originalists defend originalism on the basis that the original meaning is the one that was enacted by democratic political processes, and had the consent of the public. The meaning the public approved was that understood by the general population, not the views of a small elite of experts.

It might be possible to reconcile these opposing arguments by developing a hybrid theory that gives some weight to the views of both experts and the general public, but allows the former greater influence than would be afforded by their percentage of the population alone. This might be an originalist constitutional theory version of John Stuart Mill’s proposal to give extra votes to the more educated and knowledgeable part of the electorate. But so far, I at least have not seen a well-developed version of such a theory, and it would not be easy to figure out how to make it work in practice.

III. Why the Elitist-Populist Divide in Originalism Matters.

The elitist-populist divide among originalists is a significant theoretical question. But it also has important practical implications. In some cases, elitist and populist views of originalism might justify very different results. There may be many situations where the public’s understanding of what a part of the Constitution meant at the time diverges from that of legal elites. Obvious potential examples include situations where elites were more open than the general public towards providing protection for unpopular minorities (the issue of interracial marriage at the time the Fourteenth Amendment was enacted may well be one such case).

In addition, elitist and populist versions of originalism suggest different emphases in the types of evidence relevant to determining what the original meaning of a given clause is. Elitist originalism leads to the kind of research already commonly done by legal scholars and historians: research focused on the views of legal and political elites. By contrast, populist originalism requires us to do more research on the constitutional beliefs of ordinary people, which is not always easy to do for historical periods before the rise of modern public opinion polling.

I don’t want to overstate the difference. In many, perhaps most, cases, it is likely that legal elites, “reasonable” readers, and the general public all had similar interpretations of a given part of the Constitution. But we should not assume that this is invariably true.

Finally, I should note that the distinction between elitist and populist approaches to originalism matters not just for originalists, but also for many nonoriginalists who still believe that the original meaning is one of several considerations that judges should take account of in deciding constitutional cases. The latter also need to consider whether courts should rely on elitist or populist versions of originalism, or perhaps some combination of both.

UPDATE: It is worth noting that there are also important differences between elitist and populist approaches to “living constitution” theory. The latter give much more weight to the general public’s views on what rights the Constitution protects than the former. I might discuss this in a future post, if time permits.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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