More on elitist and populist approaches to originalism [updated with an additional rejoinder to Timothy Sandefur]

August 20

My recent post on elitist and populist versions of originalism has drawn thoughtful responses from Timothy Sandefur of the Pacific Legal Foundation and University of San Diego law professor Michael Ramsey. Sandefur argues that the distinction between elitist and populist originalism doesn’t really matter. Ramsey, by contrast, agrees that it does, and offers a defense for one variant of the elitist approach. In this post, I offer a rejoinder to some of their points, starting with Sandefur, with whom I have greater disagreements than with Ramsey.

I. Response to Sandefur.

Sandefur argues that the difference between elitist and populist versions of originalism is insignificant because legal interpretation is necessarily elitist:

[S]urely the populace is on notice that terms in the Constitution are very important, are pored over by lawyers and judges, and are interpreted in light of other precedents. They are therefore ultimately responsible for choosing words that avoid results they don’t like…

[L]aw consists almost entirely of a very refined and specialized use of language. That refinement and specialization is within the grasp of the ordinary person, but most ordinary people don’t bother trying it: they (rationally) leave that task to legal experts. If the experts do something wrong, then the people can use their retained power to fix the problem. But to say that there is some fundamental problem with the lawyer’s technical use of language does not help. What, after all, are we to replace it with? Daily polls of what people think the terms mean? Then who will take the polls? And who will interpret these polls? And then aren’t the interpreters doing just what judges already do: figuring out what people think the words mean?

A judge who tries to implement some distinctively “populist” understanding of the law will soon find herself in the “elite” category. This is because there is no qualitative difference between the “technical” use of a word and the ordinary use of the word; one shades into the other, and members of the populace have varying degrees of understanding of these meanings.

I disagree with Sandefur’s claim that “[L]aw consists almost entirely of a very refined and specialized use of language.” Many laws – including most of the text of the Constitution – use words in their ordinary, nontechnical sense. Advocates of populist originalism believe that all law – or at least all of the words of the Constitution – should be interpreted as understood by an ordinary reader at the time of an enactment (either a hypothetical “reasonable” ordinary reader, or the actual views of ordinary voters at the time). In some cases, that understanding might have been that the public was willing to delegate the task of interpreting a specific technical term to judges or other elites and accept whatever interpretation those elites come up with. But such willingness needs to be proven, not just assumed, as there are often plausible reasons why the people might not understand even seemingly technical words in that way.

It is certainly true that the people inevitably leave most of the work of legal interpretation to professionals. But the point at issue is how the professionals should carry out that work. In interpreting parts of the Constitution, should they look to the understanding of legal elites at the time of enactment, or that of ordinary people? There is no inconsistency in claiming that judges and other legal experts should do the most of the work of legal interpretation, but that they should do it in accordance with the understanding of the words held by ordinary readers at the time of enactment. Legal experts today know more (or at least should know more) than ordinary people today about how the ordinary people of 1788 or 1868 understood the meaning of parts of the Constitution enacted at that time.

Finally, Sandefur is right that the distinction between elite and popular understandings of the Constitution is sometimes difficult to discern. Indeed, as I noted in my earlier post, the two will often be exactly the same. But in at least some cases, the view held by elites at the time of ratification is likely to diverge from that held by most of the general public during the same time period. In the event of such a disagreement, populist originalism holds we should opt for that of the public.

II. Response to Ramsey.

Michael Ramsey does not deny that the distinction between elitist and populist originalism matters, but argues that the former is generally preferable to the latter:

[T]he Constitution was not approved by referendum; it was approved by elected representatives — the ratifying conventions, for the original constitution, and the state legislatures, for the amendments. True, the members of these bodies were not all members of the legal elite — but some of them were, and their debates were focused on the legal meaning of the text in a way that the public at large was not. The conventions and state legislatures may have been influenced by the results their constituents wanted, but they were probably not so concerned about how their constituents understood particular phrases.

Again consider the ex post facto clause: the ratifiers may have cared whether their constituents thought all retrospective laws should be banned, but in considering the text, their concern would have been the likely legal meaning of the phrase, not what their constituents thought the phrase meant. So I would think that versions of originalism based on the understandings of the ratifiers (that is, of the conventions and the legislatures) would lean more to the legal rather than the populist meaning.

Even if the ratifying conventions were staffed primarily by members of the legal elite who preferred elitist interpretation over populist, that does not necessarily mean originalists should endorse that approach. Moreover, in the Founding era, just like today, many legal elites did not rigorously distinguish between the elitist and populist approaches to interpretation, and did not think carefully about the differences between the two.

Ramsey also suggests that “the most common version of modern public meaning originalism embraces something like the view Professor Somin rightly associates with Gary Lawson and Guy Seidman: a search for the meaning of the constitutional text to a hypothetical ‘reasonable person,’ who is ‘conversant with legal traditions and conventions of the time.’” Lawson and Seidman’s hypothetical “reasonable person” is also “highly intelligent and educated and capable of making and recognizing subtle connections and inferences” and generally “a formidable intellectual figure.” It is not clear to me whether Ramsey believes that the most modern advocates of original meaning originalism also sign on to these aspects of the Lawson-Seidman view.

In any event, I am skeptical that the Lawson-Seidman view is actually the most common version. In Part I of this article, I survey the views of a wide range of prominent originalist judges and legal scholars, many of whom seem to disagree with the Lawson-Seidman approach. However, it’s possible that for some the disagreement is more seeming than real, because some of these writers may not have carefully considered exactly how much legal sophistication their preferred “reasonable” reader should have.

Be that as it may, it is worth noting that a majority of the Supreme Court – including its most prominent originalist, Justice Antonin Scalia – seems to endorse a version of the populist approach. As Scalia put it in his majority opinion in District of Columbia v. Heller (2008):

In interpreting [the Second Amendment], we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U.S. 716, 731 (1931)…. Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

I agree with Ramsey that populist originalism, especially in its most extreme versions, poses difficult interpretive problems. I analyzed this problem in some detail in my 2012 article on “Originalism and Political Ignorance.” Life for originalist judges and legal scholars would be easier if elitist originalism is the correct variant. But that does not in itself prove that the populist version is wrong.

Finally, Ramsey believes that “perhaps a better way to think about the divide is not between elitist and populist meanings, but between legal and non-legal meanings.” His preferred terminology may be better than mine. But I worry that it prejudges the very point at issue between the two theories, which is precisely whether the elitist or the populist interpretation of the Constitution represents the legally binding meaning of the words.

These posts are just the beginning of what I hope will be an ongoing discussion about the relative merits of populist and elitist approaches to originalism among jurists and legal scholars. I am grateful to Ramsey and Sandefur for taking up the issue, and look forward to future contributions by them and others.

UPDATE: Sandefur responds to this post here. But I think his argument is based on two misunderstandings of my position. First, he seems to assume that an interpretation is necessarily elitist if ordinary people today could only access it by consulting experts or using specialized sources. I completely agree that intelligent ordinary people researching the original meaning of the Privileges or Immunities Clause today would “get down the history and law books and look up how people in 1868 understood “privileges or immunities.’” But it still makes a difference whether, when they conduct that research, they should be trying to figure out how ordinary people in 1868 understood the term, or how legal elites did (or some weighted combination of the two).

Second, Sandefur appears to assume that I support the populist approach. I do not necessarily do so, and I certainly did not mean to advocate it in this post or my previous one. Rather, I merely wanted to explain how the populist and elitist approaches differ, and why it matters for originalist constitutional interpretation.

Sandefur also reiterates his earlier claim that legal language is necessarily technical, noting that it involves use of words in a the use of words in “a special, careful, technical sense.” The language of the Constitution may indeed be special and careful. But it is not necessarily technical in the sense that it must be understood in the way preferred by legal elites at the time of enactment.

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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