Rick Kay has an essay in the Northwestern Law Review's recent special issue on originalism: Richard S. Kay, Original Intention and Public Meaning in Constitutional Intepretation, 103 Northwestern L. Rev. 703-26 (2009). I append below the table of contents to demonstrate the indubitable distinction of the other authors with whom Rick shares a platform. But, in truth, it should be the deans at these other schools bragging that their colleagues have the high privilege of collaborating with Rick.
This essay is as lucid an exposition of basic constitutional points as one will find. It revisits themes long central to Rick's work in constitutional theory with an update based on a internal struggle that has erupted between two schools of "originalist thought." Rick finds this factional rift particularly significant because, quoting Jeffrey Rosen, Rick claims "we are all originalists now." Squaring Brown v. Board of Ed; Griswold v. Connecticut; Baker v. Carr; New York Times v. Sullivan; and other widely hailed landmark cases of the 20th century with an unqualified embrace of originalism is a feat I'm waiting to see. But that's not Rick's topic here.
Instead, Rick notes a divide that has arisen between two different approaches to "originalism." The older form, and the one Rick favors, seeks to determine the meaning of constitutional text based on the original intent of those who originally made the constitution into law. Key questions here center on what was in the minds of the lawmakers, and thus this interpretive approach is often referred to seeking "original intent". Alternatively, a more contemporary form of originalism has arisen in reponse to the oft-repeated concerns over the difficulty of determining group intent. This latter approach, known as the "original public meaning" approach focuses instead on how the words of the constitutional text would have been interpreted by an ordinary (or reasonable) person at the time of ratification. (Rick makes some telling points about the difficulties of determining just how to assess the correct public audience, but I will leave those for another day.)
Rick devotes this essay to demonstrating why "original intent" is a stronger approach that is more faithful to the constitutional enterprise. His opponents include constitutional luminaries such as Justice Scalia, Robert Bork, Randy Barnett, and Gary Lawson. No matter. Rick isn't merely convincing; he delivers a knockout blow.
Rick begins briefly by illustrating recent scholarly tendency to overstate the difficulty of determining collective intent. Groups can form ideas, he points out. Consider, "they planned to go out this morning, but they changed their mind when it started to rain." Everyone knows what this means. He also notes that many of the problems in discerning intent may simply result from an excessive focus on the intent of the constitutional drafters as opposed to the perhaps more transparent motives of constitutional ratifiers. These points are warm up.
Two more telling arguments constitute the essay's core. First, Rick convincingly explains why seeking the intent of the lawmakers fits more closely with the reasons we find the constitution legitimate in the first instance. Why should we care, after all, what people receiving the constitution might have thought it meant if this is not what the people duly chosen to make law actually thought it meant. If those writing a tax law consider tips to be income as that word is defined in the statute, would it be right to find tips not income if the ordinary person believes them not to be such.
Second, Rick argues that a judicial search for original intent will prove more confining and push judges toward a proper understanding of their role. A fight over what drafters and ratifiers intended is for Rick a factual inquiry. But a fight over the public meaning of a term at a particular time is a more open-ended invitation to judicial mischief. He cites some nice examples from Jack Balkin to illustrate the point.
What I like best about the essay is that it returns at the end to what Rick sees as the point of the constitutional enterprise. He has long argued that providing clear guidance to citizens about the limits of the state is the best metric for constitutional law. By that standard, he argues, “original intent” is hands -down superior to “original meaning.” Of course, there will continue to be readers who find the brilliance of the constitution in its identification of key questions and values without it always providing clear guidance on solutions. Those readers generally don’t have Rick’s sympathy, but in this essay they don’t have his ear at all. If, he argues, one plans to take the originalist plunge, one might as well dive into the deep end. Original intent may be hard, but finding success in determining the meaning of the lawmakers would be worth the candle. In contrast, some mythical allegiance to the understanding of the public is for Rick a pointless dodge that does more harm than good. Take a look and see if you don’t agree.
Congratulations, Rick for so eloquently having the courage of your convictions. J