Pre-"originalism".

• Author: Toler, Lorianne Updike
• Position: II. Originalism and Non-Originalism in Practice p. 298-325

2. ORIGINALISM AND NON-ORIGINALISM IN PRACTICE

Now we turn to our comparison of the Supreme Court's use of historical sources with contemporary modes of constitutional interpretation. It was important to approach the Court's historical use of interpretive methodologies with a great deal of skepticism. Although it is certainly possible to trace the roots of historical interpretation back through the history of the Court, the imposition of today's developments in Originalist methodologies on the past carries the serious risk of ahistoricism and anachronism. The study of modern Originalism has some similarities to Justice Black's Intentionalist-like theory of total incorporation of the Bill of Rights in the 1950s, (73) but it has developed in present form, as was shown in the last Part, only over the past thirty years. Moreover, it is very difficult to pin down language for any Non-Originalist theory other than Living Constitutionalism: The concept can easily be cloaked in statements suggesting structural, purposive, or other modes of interpretation, or merely expressing skepticism of particular historical analysis.

Nevertheless, it is still possible to evaluate the ninety-six cases of constitutional first impression in terms that the Supreme Court has used to describe its own methods. (74) We sought to compare the methodologies of the historical Court with three of today's most-discussed and generalized theoretical interpretive categories: Intentionalism, Public Meaning, and Living Constitutionalism. As part of our quantitative composition of Court-tracking data, we collected the Court's own assessment of its methodology--how each Court claimed it was interpreting the Constitution. These we portioned off into language that is today associated with the three methodologies and is available for review by the reader in Appendix 18.

In doing so, and as the reader may detect, we looked for words and phrases that would imply the writer found the intent of the Constitution or its creators--whether Framers in Philadelphia, delegates to state ratification conventions, or the document's amenders--as authoritative in his interpretation of the Constitution. (75) These we classified loosely as "Intentionalist." (76)

Original Public Meaning proved more difficult. Portions of opinions that discussed the original or historical meaning of words or phrases, especially where dictionaries were used, or the general public's understanding of the language was referenced, we classified as Original Public Meaning. We also found a more comprehensive approach was necessary, given that it was often difficult to spot discrete language that would indicate such a specific interpretive approach. (77) For that reason, we also included the Court's use of the phrases "public," "meaning," and "understand" when used to designate support for a particular constitutional argument.

Finally, we tracked language that expressed the desire to allow the Constitution to grow over time according to people's needs, and to be interpreted according to today's understanding. This approach was labeled "Living Constitutionalism." Similar to Public Meaning, this categorization required a more holistic approach. Accordingly, we included in this category Chief Justice John Marshall's 1821 Cohens v. Virginia language that "a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it," which gives only debatable support to Living Constitutionalism. (78)

We admit as a facial matter that our method of encoding was not without its defects, as is inherent in any method requiring such broad categorization. Were this analysis repeated, it might yield different results, although none that would fall substantially outside a generalized margin of error. (79)

Our analysis produced interesting and often surprising results. Although the universe of ninety-six cases was small enough to yield low data levels for various categories, it was possible to identify overall trends for subsets of data and over certain periods of time. Interestingly, these trends roughly correlated to the first and second centuries of the Court's history, with the Waite Court, 1874-88, as a rough turning point in the kind, number, and uses of historical sources. (80) Our analysis of the language that the Justices used in commenting on their use of and reliance on historical sources allowed us to make a provocative comparative study to today's classifications of interpretive methodologies. We were also able to identify, with clarity, which sources were used most often, and which sources, often surprisingly, were less popular.

The results of our study show that the Court's methodological practice tells a different, far more complex story than has previously been painted. Upon close examination of the Court's use of historical sources, the gulf between constitutional theory and practice, both as compared to today's categories and as compared to yesteryear's more loosely defined interpretive theories, seems particularly deep and wide.

The results of our language study, pictured in Chart 1, below, show that the Court appeared to perceive itself as overwhelmingly Intentionalist throughout time--especially during the Marshall Court. (81) Of the eighty-eight statements made by the Court regarding its interpretative method, fifty-three, or 60%, contained Intentionalist-sounding language. Living Constitutionalism, at least based on clear-statement objectives, was the apparent loser, explicitly utilized only twice. (82) The Supreme Court appeared, by and large, to have used language that, if the Court's practice conformed to stated theory, would land it in an ideological camp that could be best described as unabashedly Intentionalist.

The language the Court often used is telling. For example, in Cohens, the Court said, "[t]he framers of the constitution would naturally examine," (83) and in Prigg v. Pennsylvania, Justice John McClean noted, "It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies that ever assembled, they were, perhaps, most exempt." (84) The Court used such language time and again, providing at least the impression that it placed the weight of authority on what the Framers intended the Constitution to mean--that is, they were claiming to practice what today we would call Intentionalism.

A closer look, however, reveals that the Justices may have been doing something other than actually relying on the intention of the Constitution's creators. In comparing the Court's stated theory with the ways in which it used historical sources, it became evident that the Court did not always conform to its stated Intentionalist-sounding rhetoric. Exactly what the Court was doing instead, and why, changed dramatically over the Court's history. The close of the Waite Court in 1888 acts as a dividing line between two eras that we will call the Court's first and second centuries. We discuss what happened in each era and the reasons we have delineated them as such below.

1. The Court's Non-Intentionalism: The First Hundred Years

   Although something akin to Intentionalism seemed to be the Court's first choice of interpretive methodology during the first hundred years (see Chart 2, below), Intentionalist language was often coupled (or even tripled) with language that more closely parallels Public Meaning or Living Constitutionalism. This fluidity makes a definitive categorization of the Court's presumed methodology extremely difficult.

   In some opinions, the Justices evoked language from multiple methodological perspectives. Opinions that in one breath would seem to advocate an Intentionalist-like approach would, in the next, advocate something like Original Public Meaning. Justice Samuel Chase, signer of the Declaration of Independence and member of the first Supreme Court, used language that supported both Intentionalist and Public Meaning-like interpretive approaches. For instance, the phrase "if the Framers of the Constitution did not contemplate other taxes than direct taxes, and duties, imposts, and excises, there is great inaccuracy in their language" (85) appears to be classifiable as both Intentionalist language (referring to what the Framers contemplated) and apparent Public Meaning language (discussing linguistic meaning and context). In like manner, one passage from Calder v. Bull seems to relate to Public Understanding--"The expressions " ex post facto laws," are technical, they had been in use long before the Revolution ... by Legislators, Lawyers, and Authors"--while another passage seems to relate to Intentionalism--"The restraint against making any ex post facto laws was not considered, by the framers of the constitution, as extending to prohibit the depriving a citizen even of a vested right to property." (86) Such crossover in apparent approaches--placing weight on both the intentions of the Framers and the understanding of the age--was typical and prevalent. (87)

   Often, a...