The Revival Of Original Intent Transcript

Richard Reinsch (00:00:04):
Welcome and thank all of you for coming tonight to our event, The Recovery of Original Intent that The Heritage Foundation is co-hosting with the project on constitutional originalism and the Catholic intellectual tradition, The Catholic University of America, Columbus School of Law.

The members of our panel tonight will engage a series of questions that go to the core of legal interpretation. We are quite familiar with progressive interpretive methods that assign moral agency to history, updating the constitution and statutes according to the evolving needs of the times which always seemed to move in an egalitarian or a liberated direction.

On this score, consider the astonishing words of Justice Anthony Kennedy in Lawrence versus Texas, “Had those who drew and ratified the due process clause of the Fifth Amendment or the 14th Amendment known the components of liberty and its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see laws once thought necessary and proper in fact only serve to oppress. As the constitution endures, persons in every generation can invoke its principles in the search for greater freedom.”

And of course it falls to federal judicial officials to define this direction for us. Alternatively, originalism and its dominant school of original public meaning looks to interpret the constitution according to the public meaning of the terms at the time a provision of law was enacted. Originalism, however, has many schools or nuances of thought and interpretive results can vary, sometimes widely. Certain originalists look to the meeting that it would have to a reasonable hypothetical observer.

Still other originalists make a distinction between interpretation and construction. I say this not to quibble, but to note that originalism has itself become a rather broad church for its members. But what about the intent and will of the lawmaker? Was this fairly or unfairly dismissed by leading methods of legal thought? Including what became the dominant tenor of originalism. Our event tonight, alternatively, we’ll consider if we have forgotten something that is basic to the beginning of written laws in the Western legal tradition.

If law is just the written instrument that was made by a lawmaker, then should not the essence of interpretation be to discern and apply the will of the lawmaker? If that’s true, then it seems the dominant interpretive schools have been looking in all the wrong places, foregoing inquiries into what the lawmaker was trying to do and why the lawmaker was trying to do it. As reviving intentionalism, the way out of a seemingly irresolvable contest between judicial policymaking or a search for textual clarity.

I know that our panelists tonight will thoroughly engage this debate and leave us with greater understanding and curiosity. I now invite the members of our panel to the stage, which will be moderated by Kevin Walsh, co-director of the project on constitutional originalism in the Catholic intellectual tradition.

He is also a professor of law at Catholic University’s Columbus School of Law. Professor Walsh’s Scholarship focuses on the scope of federal judicial power and his work has appeared in the Georgetown Law Journal, the Stanford Law Review, the New York University Law Review and the Notre Dame Law Review and in many other publications.

He previously taught at Richmond School of Law for 13 years. He practiced law at Hunting and Williams. He clerked for Justice Antonin Scalia on the Supreme Court of the United States and for Judge Paul Nehemiah on the United States Court of Appeals for the Fourth Circuit. Professor Walsh, the floor is yours.

Kevin Walsh (00:04:27):
Thank you. Well thank you Richard and thank you to our hosts here at The Heritage Foundation and to all of you for being here this evening. On behalf of the project on constitutional originalism and the Catholic intellectual tradition, I welcome you to our first collaboration with The Heritage Foundation.

Just to say a word about CIT, which is our project at the Columbus School of Law at the Catholic University of America. We’re dedicated to the scholarly exploration of the relationship between American constitutionalism and the Catholic intellectual tradition through programs like this one, through fellowships for law students and young legal professionals, lecturers, related events. So our website is

We’ve been up to a lot and I invite you to explore further. As Richard mentioned, I’m Kevin Walsh, co-director of the project, along with my Columbus Law colleague, Joel Alicea and this evening’s program on the revival of original intent is going to be a very good one.

Each of our panelists will offer an opening statement and then I will facilitate a discussion, open the floor for questions. We heard the voice of God to begin this or it’s a technical term I’m told, but we’re also have the AV facilitated.

So our first speaker will be Professor Donald Drakeman, distinguished research professor at the Center for Citizenship and Constitutional Government, the University of Notre Dame. He’ll be followed by Professor Richard Ekins, Professor of Law and Constitutional Government, St. John’s College, University of Oxford. And third will be Tara Grove Vincent and Ekins chair in law at the University of Texas at Austin School of Law.

I’ll skip what you can read about these scholars from their webpages and just tell you, I always like to make one or two recommendations for these people. For Professor Drakeman, I recommend his 2022 book from Cambridge University Press, The Hollow Core of Constitutional Theory: why We Need the Framers for Professor Ekins take a look at his 2012 book from Oxford University Press, The Nature of Legislative Intent as well as my favorite in an American Law Review is a 2017 article and constitutional commentary called The Object of Interpretation.

For Professor Grove, my law school classmate could commend you an entire Supreme Court issue from the time that we were together, but more recently I would say take a look at the November 2020 issue of the Harvard Law Review for her comment on the Bostok case as well just two weeks ago in the Northwestern University Law Review called the Misunderstood History of Textualism. But now, I commend to you our speakers and we’ll begin with Professor Drakeman.

Donald Drakeman (00:07:25):
Thanks very much and thank you all for giving me the chance to appear virtually today. Just wave, Kevin, if you can hear me so I know that I’m on. Great. All right, so today I just want to defend one very simple proposition. That the original meaning of the Constitution is what it originally meant.

That seems pretty straightforward and what it means is that we need to determine the original meaning the same way that laws were interpreted at the time the Constitution was adopted. We know how founding era judges and lawyers were taught to interpret written laws. The goal was to determine the lawmaker’s intent, the objective meaning of the text or what Blackstone called the words in their usual and most known signification offered important evidence, but that was not the ultimate goal.

Cook’s institutes have been called the universal text for educating American lawyers in the founding era. They said, “Every statute ought to be interpreted according to the intent of them that made it.” The other primary textbook was Blackstone, who said, “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made.”

James Wilson said the same thing in his law lectures as did Joseph’s story in his commentaries. As late as the turn of the 20th century, Penn’s Law dean published the commentary echoing the very same theme. Nevertheless, until recently, originalists have tended to follow Justice Scalia’s guidance, “What I look for in the constitution is the original meaning of the text, not what the original draftsman intended.”

Now, why would he say that? Because as Justice Scalia said, references to intent have led to more poor interpretations than any other phenomenon in judicial decision-making. But that I would say is really just an overreaction to cases like Emerson with its wall of separation between church and state.

That case wasn’t based on the framer’s intent, despite all the references to Madison and Jefferson. The justice’s private papers show that they wanted to prevent Roman Catholic influences in education, particularly in grade school and high school. It was really just a living constitution conclusion, dressed up with cherry-picked quotations from framers that fit the need.

Well, that’s not a problem with the framer’s intentions. That’s a problem with the justice’s intentions. They wanted to substitute their own church state preferences for the ones that the framers had actually chosen. If we focus on what the First Amendment framers were trying to accomplish and not what James Madison said at a different time in a different place about an entirely different issue, we get to a different outcome. Their goal was simply to say that Congress could not set up a national church like the Church of England.

That’s it. Now, beyond Justice Scalia’s worries about results. There are two other classic arguments against intent. One is the so-called summing problem, how to find one intention representing all of the framers. That actually isn’t as hard as it sounds.

The question of how to determine a single intention of a lawmaking body has been around as long as legislatures have them. Professor Ekins in fact, that has written a terrific book on that topic, the one just recommended to you by Professor Walsh. The individual framers may have initially hoped for a range of different outcomes, which is where the cherry-picked quotations often come from. But then the arguments in the bargaining began.

Ultimately when it came to the final language, they knew they were voting on a provision representing a particular way to address a specific issue. People voting both for and against a provision can understand it the same way. That understanding, what Professor Ekins calls the laws ends and means, or essentially what Blackstone called the mischief and the remedy is the understanding we need to look for.

Now, by the way, for those of you who worry that the so-called mischief rule can lead to judicial mischief, it’s important to note that the mischief always needs to be paired with a remedy. That is, it’s the combination of fully negotiated ends and means that represents the will of the lawmaker, not anything a judge thinks that might relate to the underlying mischief.

Meanwhile, as I first learned in a wonderful collaboration with Professor Alicea, public meaning originalism has its own summing problem. In a nation of immigrants spread across a large territory, some terms had different meanings in different parts of the country. The public meaning in New England could be very different than the one in the South.

The only way to know which is the right one is by focusing on the framer’s intentions. As justice and framer, William Patterson said in the court’s first exercise of judicial review in 1796.

The other issue is the argument that the Ratifiers, not the framers were the constitutional lawmaker. But the only reason we think that is because we have fallen into a trap set by the framers. Revisions to the Articles of Confederation needed the agreement of every state legislature. Instead, the framers invented ratification which only needed the approval of nine state special conventions.

The Constitution replaced the articles of Confederation solely on the framer’s own say so. Ratification is one of legal history’s great misdirects. It’s a classic Wizard of Ozzy and pay no attention to the framers behind the curtain. But I’d like to end by highlighting one of Professor Grove’s key points in a recent Harvard Law Review article.

She argues that a formalistic textualism best serves the court’s need for sociological legitimacy, which is essentially the public’s confidence in the Supreme Court. She’s certainly right about legitimacy but sola scriptura textualism is unsustainable as a practical matter.

For the originalism political movement of the last few decades, it’s been a rhetorically useful, clear and straightforward message designed to reign in overly creative justices. But commentators for centuries have pointed out that it is not adequate to deal with the complexities of either law or language over the longer term.

Moreover, from a legitimacy perspective, if the justices embrace intentionalism, they will be doing just what the public wants. A poll of a thousand Americans says that over 90% think the court should at least consider the constitution’s original meaning.

So that’s people who call themselves living constitutionalists and people who call themselves originalists, 90% think that the original meaning has at least some relevance for the court’s decision. When asked what is the most important evidence of that original meaning, two-thirds believe that the framer’s intentions are the most important evidence of the meaning.

Lately, we’ve seen a number of constitutional theorists begin to turn towards the intentionalism that the public already expects. Jurisprudentially, that’s a good thing and has the added benefit of being the popular choice. Thank you very much.

Kevin Walsh (00:15:44):
Thank you. I can see we’re going to have a very robust discussion. Professor Ekins, to you.

Richard Ekins (00:15:51):
Thank you Kevin for that kind of introduction. I should add my thanks to the Heritage Foundation for hosting us tonight and my appreciation for the Catholic University of America in supporting this new initiative on the Catholic intellectual tradition and originalism, an initiative with which I’m delighted to be associated.

I want to talk about Intentionalism in the theory and practice of statutory interpretation, taking in the question of how the legislature’s intention, legislative intent frames statutory interpretation. Most of my research has concerns statutory rather than constitutional interpretation. Although in the article that Kevin mentioned, I have crossed swords with Cass Sunstein about constitutional interpretation and I have a long unpublished paper on the Constitution as an enactment, which I’m happy to share with anyone who might be interested.

For those whose primary interest is constitutional interpretation, I would suggest there’s still very good reason to think long and hard about how statutory interpretation works. To my mind, it’s in one sense the simpler and more general category, which brings into sharp focus the relationship between authority, text and law.

When I teach constitutional interpretation in Oxford, I do so by starting with statutory interpretation and the relationship between acts of legislating and the law that legislation makes before widening out or turning to the more particular or special case of the constitution.

Our subject tonight is the revival or the recovery of original intent. It’s striking to see as Don pointed to how central the will of the lawmaker has been to legal thought and practice in a historical perspective. For centuries, the common law tradition of statutory interpretation has centered on recognizing, articulating legislative intent. Blackstone, one amongst many, readily affirming that.

The same thing is true in legal and political philosophy. Figures as diverse as Thomas Hobbs and Thomas Aquinas sharing a focus on the legislative will, the historical tradition, the philosophical tradition, historical practice, philosophical tradition comes under a lot of pressure in the 20th century. Legal realists, notably Max Raden, pouring scorn on the idea that a congress or a parliament might have, might form a single will and that’s skepticism taken up amplified by Ronald Dworkin and Jeremy Waldron in the late 20th century.

They share a common critique. Groups don’t have intentions to boil it down, but their concerns are very different. Seems to me that Ronald Dworkin was aiming to clear legislative intent from the stage so that only Justice Hercules would be able to speak for the law, to be the mouthpiece of the law.

Jeremy Waldron, by contrast aimed to vindicate the role of the legislature in public life, but he thought the idea of legislative intention could only distort our understanding of legislative practice. Some theoretically minded judges have echoed those concerns, those criticisms. Decrying legislative intent as irrelevant or dangerous, trivial or radical if you like and likely to distort interpretive practice. I have a mind, of course, the latest great Justice Scalia has already been referred to, but there are many others.

Many leading Australian judges today take a similar view. British judges, if you’re interested largely steer clear of that skepticism. Most still take legislative intent seriously. My work has been an extended response to this skepticism, aiming to provide some philosophical grounding for the old dispensation. Attempting to demystify and thus to defend legislative intent.

My focus has been on the idea of legislative authority, what it’s for and how it is to be exercised. I’ve aimed to illuminate the nature of legislating by adopting the internal point of view of the reasonable legislator. In other words, have attempted to follow the reasons there are for legislation, for legislating, for having a legislature in order to explain what legislating is and how legislatures act.

The way in which language works is very important, but it seems to me also to be secondary. Secondary to questions in the philosophy of law, to reflection on the moral aim, the moral need rather for legislation and thus the point of legislating. When you’re re reasoning about this, Aquinas is understanding of law is instructive. It’s an ordinance of reason for the common good made by him as care of the community and promulgated. John Finnis is elaboration of Aquinas’s thought frames that as an ordinance of reason for the common good in the mind of the ruler, which is adopted by the rule as if it were their own.

Now, I think that ably captures the idea that acts of legislating involve choosing a plan of action which is intended to change the law and thus social life, a plan that the legislature aims to share with others. The idea of intentional legislative action is not incoherent because it is possible for groups to have a plan of action, to understand themselves be doing something together.

The internal structure of modern legislatures is framed to this end, so the many legislators can joining in one legislative act. But what does this mean for statutory interpretation? The foundation of the practice is that we aim to understand the act of legislating, to understand how the legislature has exercised it authority to change the law. The legislature is an agent, it’s capable of acting for reasons, which means we read statutes as an exercise of agency, as intentional acts. It has a number of further particular implications, a few of which I want to just mention now.

One should read the statute as an act of one person, one artificial person, which means it’s presumptively coherent. The different parts of the statute are intended to work together. The internal context of the statute matters. The statute is an exercise of authority at a dateable point of time. The context of enactment rather than the context of adjudication is indispensable. Understanding the legislative act requires one to reflect on the legislatures likely or apparent reasons for acting. The interpreter acts wrongly if he or she foists on the statute, a meaning that one has good reason to think is not intended.

The legislature’s apparent purposes matter, but legislating involves the choice of means as well as ends. One should not simply attempt to maximize the ins that the legislature had in view, a point that Justice Scalia made very powerfully. The history of the legislation before this particular enactment is highly relevant to interpretation but I say the Congressional record itself may be less than helpful.

Now, that last point may seem a bit mysterious in view of everything else I’ve said. So let me explain, this way I bring things to a conclusion. As I see it, legislative intent is the object of the interpretive exercise. It’s what we aim to identify and to give effect. In other words, it’s not a further source of evidence or argument which might be listed alongside other sources such as grammatical sentence meaning of consequences and it does not reduce to the remarks made by individual legislators.

Instead, the various sources of interpretive argument help to reveal intent. Recognizing legislative acts as intentional exercises of authority helps to order and discipline the various interpretive arguments or types of argument that are otherwise disordered and liable to misfire. These are, I think, some of the truths about legislating and interpretation that have long informed our practice, the truths should I suggest be recognized and restored to the center of that practice and to theory about that practice. Thank you.

Kevin Walsh (00:24:08):
Thank you. Okay, Professor Grove.

Tara Grove (00:24:11):
All right. Thank you so much for being here. I want to thank both Professor Walsh, my former law school classmate and Professor Alicea for organizing this. I’m sorry that Professor Alicea could not make it here. I have my computer out so I can get quotes right, but I guess I’m here to defend Justice Scalia.

Seems to be be my job and I’m happy to do it. Much of my work has also been in the statutory area, and that’s where I’m going to focus my comments. Although I think many of my comments also apply to some notions of constitutional interpretation. So what does intent mean?

Intent can mean kind of the subjective intent that gets attacked all the time. The notion that all the members of Congress cannot possibly have the same intent or it can mean a more objectified intent, which I take it to be closer to what Professor Ekins is saying and actually what Justice Scalia talked about. What did folks back in the 19th century mean? If you look back at statutory decisions from the 19th century and from my recent paper, The Misunderstood History of Textualism, I looked at every case from 1789 to 1945 that used the term plain meaning.

In the 19 century, you actually see a lot of references to intent. It’s true. Chief Justice Marshall referred to intent quite a bit. So for example, in United States versus Wilberger in 1820, Chief Justice Marshall said, “The intention of the legislature is to be collected from the words ‘they employ’.”

But note what he’s talking about is very much an objective intent. How do I know that? One in the early 19th century, in 1820, legislative history was not readily available to the Supreme Court so it would’ve been very hard to go back and look at the debates and try to figure out what did the individual folks think. I also feel very confident about that because of the actual result in this case. United States versus Wilt Berger was just picked out of a hat by me. This has been called by John Manning and John Yu, one of the quintessential examples of Chief Justice Marshall’s approach to statutory interpretation. The case involved whether the federal court’s had jurisdiction over a criminal case out of China. There was a manslaughter that was committed on an American ship off what is called the Tigers River in China. And by the way, for those of you who are thinking, well, there’s no Tigers River in China, I’ve checked that’s what the case says, but I haven’t been able to find out out where the Tigers River was.

But it was a very small river. The statute at issue allowed for federal jurisdiction on the high seas. Chief Justice Marshall said, “There’s really no way the high seas will include a river.” That was very much supported by the structure of the statute because other provisions of the statute did actually allow the federal courts to have jurisdiction over manslaughter and other crimes committed on rivers, but not this particular one.

Now, the problem was this meant there was no way to prosecute the manslaughter, and this is precisely with the government argued in the early 19th century. So they said to the Supreme Court, “Look, if the American courts don’t have jurisdiction, no one will prosecute this crime because the Chinese courts will not exercise jurisdiction over a crime committed by foreigners on a foreign ship.”

Chief Justice Marshall said, “It was extremely improbable that Congress meant to preclude jurisdiction over this crime.” But that’s what the statute said. And so that’s what the court said.

When you fast-forward to the late 19th century, there are more references to what we would call a more subjective intention. That’s in large part because at that time, people could look at the legislative history. And so you get cases like Church of the Holy Trinity versus the United States, which is probably familiar to many people in this room. In Church of the Holy Trinity, the case involved whether a pastor from England could be brought in by the church even though there was a statute prohibiting contracts of labor.

Now, the Supreme Court said, “Look, of course the pastor’s going to do work. That’s part of labor, but we just do not believe it was the intent of the legislature to preclude elites like a pastor from coming to the United States to do work. So we’re going to read this provision as manual labor even, even though that’s not what it says.

And that’s really consistent with the title of the statute and the legislative history. So then we see a more subjective intent notion. So then there’s a question of, well, does that mean multiple subjective intents or can we just assume that the entire Congress thought that it was not possible that a pastor would be included?

Possibly, but then other statutes get much more complicated. So let me tell you about another case that got a lot of attention in the early 20th century, and that’s a case called Caminetti versus United States. Caminetti was about the Mann Act, which some of you have come across in constitutional law. The Mann Act at the time prohibited the transportation of women for prostitution, debauchery or any other immoral purpose.

In that case, Mr. Caminetti, who was from a prominent family and one of his buddies took two young women to Las Vegas, Nevada and then back to California. Both men were… It was widely known they were involved in an extramarital affair. Why the US Attorney went after them is not 100% clear, but Caminetti’s father had just been appointed by the Wilson Administration to be the head commissioner of immigration.

It is quite possible that the Republican prosecutors involved were keen on prosecuting Caminetti’s very Democratic family, not clear. But the case goes all the way up to the Supreme Court. And the question is, does the term any other immoral purpose include non-commercial life? These people were engaged in immoral conduct by many folk’s estimation, but was it criminal?

Well, a lot of people said including a lot of scholars, the legislative history indicated no, this didn’t apply to non-commercial vice. The majority of the Supreme Court said yes, it did, relying on the text and the decision was pilloried by countless scholars for going against the legislative history and the intent of Congress.

But interestingly, after Justice Day issued, the opinion Representative Mann, the namesake of the legislation sent Justice Day a private letter saying,” There may not have been any public statement to this effect in the legislative history, but I just want you to know you were a hundred percent right. That statute totally applied in this case.” So it turns out that not everybody agrees on the meaning of the statute, even in cases that might seem obvious to many of us.

I think that is why the legal realists first, then the legal process purpose this, then Justice Scalia’s Textualist rejected the idea of subjective intent saying that it is much more important to look at what the lawmakers enacted than what they thought they were trying to do. Now, would it be nice if legislation were really all clean and crisp and clear such that there was never any sort of dissonance in a federal statute?

Yes, that would be great. It would also be great if Congress did a lot more things. I have all sorts of opinions on all sorts of opinions on that, but that’s not how the sausage is made. So one can picture an idealized legislature, but that’s not the one we have. The one we have is one in which compromises are constantly being made, and this is one of the major insights of Justice Scalia and now dean of Harvard Law School, John Manning.

In order to be true to the Article One Bicameralism and presentment process, it is important to respect the fact that that process allows political minorities to bargain for political compromises. And sometimes to demand half a loaf. The majority will get half a loaf in order to get enough legislators on board. And so you get statutes that don’t actually make a lot of sense sometimes, but that’s what got enacted.

To my mind, that is the heart of modern textualism and it’s a modern textualism that I would love to see kept alive.

Kevin Walsh (00:33:21):
Well, thank you. There’s sort of a trick to moderating, which I think I’m going to resist because right now we have a lot of issues on the table, and I could just say you respond because there’s a lot. But let me, first… I want to return to the Constitution for a moment, and my first question is for Professor Drakeman and it’s about your reference to a misdirection in the mode of ratification because it seems to me that yes, the mainstream of the Western legal tradition would look to the intention of the lawmaker finding in human positive law. We look to the will of the lawmaker, but we have a lot of different kinds of rules for what sort of intent we’re looking for, depending on the nature of the legal instrument and the nature of the legal instrument might vary depending on who made it.

Okay. So we would have different rules for interpreting a will, testamentary provision or a contract or a statute. It seems to me that the main debate for… Well, the first several decades of constitutional law in and out of courts is over the nature of the Constitution, which in part is over the nature of the union. It seemed to me that that was necessary to, in some ways, have a position on that debate.

So you have compact theory, that it’s an agreement between the states or you have what I would call the right view that views it as a product of we the people of the United States as a single unit. Now, even that correct view does not map onto the process of ratification because we’d have both the ratification conventions as well as the framers.

My question, Professor Drakeman, is when we’re looking for this intent, you said it’s a misdirection but how do we find the intent of the lawmaker in this case just stipulating that I’m correct on the nature of the union, but I will say I am following John Marshall and Abraham Lincoln. How do we find the intent of the people of the United States when it comes to this particular lawmaking act?

Donald Drakeman (00:35:47):
That’s a good question and there are probably about 250 pages worth of good answers to try to address it. But let me start a couple of very practical ways and I’ll back into it from the Bill of Rights. Unlike the Constitutional Convention, the Bill of Rights was open, the negotiations were in the first Congress and the debates were covered in the newspaper on a same week basis. And what we see in the Annals of Congress is what the American public and the Ratifiers saw in their newspapers.

If you’re looking at the Bill of Rights and that’s a place where a lot of these arguments have taken place regarding intent and text and meaning, we know what the American public knew, which is what the Ratifiers knew. And so there isn’t an issue of access.

There may be insufficient evidence. Blackstone said, everybody said, the best evidence of what the intent was is what the words are. So everything that Professor Grove said, I think is true. I think we get into more difficulties when intent is used as a hand waving excuse for making a decision that has nothing to do with the language.

But also textualists tends to be a bit on the optimistic side about the nature of meaning. And so when we look at Justice Patterson’s decision in the Hilton case, which is the one Professor Alicea and I wrote about and where we saw this absolute equal possibility of one reading or the other reading being opposite readings, that what the intention was very clear in what the convention was trying to do. In the 1820s, there weren’t many framers left, but in 1790s there were framers on the court and they could actually say, as Patterson did, “This is what we did.”

We can also look at them say and I myself didn’t like this compromise. This is a bad compromise in my opinion, but I’m going to enforce it because that is what the convention decided to do. That’s how we solved the problem all related to taxation and slavery and the relationship of the two.

And so I think as a practical batter, these things can work when you get to a duct issue, what the commerce clause means, what the extent of federal power is, which Professor Walsh you’re alluding to, it’s fun to read St. George Tucker’s Blackstone versus James Wilson and Joseph’s story on that issue because they just don’t agree.

Really most of the constitutional commentaries from the 19th century are written to argue over just how much power the federal government has vis-a-vis the states and vis-a-vis the people. Intention doesn’t solve everything, but I’m in Professor Ekin’s camp, that it’s what we ought to be looking for but we ought not to use it as a get out of jail free card when the language is against us.

Kevin Walsh (00:39:20):
Okay, would you like to comment on that or keep going?

Richard Ekins (00:39:24):
Well, I may quickly. I’m thinking you must be right that the nature of the Constitution if it is a lawmaking act is pretty critical. Obviously who the lawmaker is and is this conceived by the people who are involved in the making of it and the reception of it? So the life of it as a discrete lawmaking act, is a lawmaking act like a contract, like a statute or is it more like the beginning of a common law practice?

Those seem like critical distinctions. Now from afar, obviously I’m not American, it looks like a lawmaking act to me. With Don, I think in a sense, the way in which the relevant participants at the time would’ve been thinking about lawmaking acts would’ve framed the way in which they would understand the nature of their action.

Now, it looks to me as though what you might have is a practice that begins with the Legislative Act, with an unusual ad hoc legislature if you like and important questions to be asked about what type of enterprise are we engaging in here? Are we creating a new political community?

Yes, in some sense, what type. But over time, it may be the fact that people in the United States, so at least not saying Don’s poll, are not that keen on continuing to treat it as a legislative act. It’s going to be, in a sense, much more like the grounding for a common law practice. I think you’ve got a kind of equivocation between those two things in the constitutional law that follows. That’s what I’d say.

Tara Grove (00:40:51):
I’ll let you ask your next question.

Richard Reinsch (00:40:53):
Well, so there was mention made of St. Thomas Aquinas’s definition of law as an ordinance of reason for the common good made by one with care of the community or with lawmaking authority and promulgated.

Some of Professor Grove’s comments seemed to focus, if we were to map this onto Aquinas’s definition or understanding of all law, that the Textualist has something very important to say about promulgation and might say, “Well, you intentionalist, you overemphasize the ordinance of reason for the common good and maybe by one with lawmaking authority and give insufficient attention to this element of promulgation and you need that.

If you don’t have law, at least the central case of law without promulgation, then is the textualist correct that the text is the law and therefore and you see the move right there, so because the text is the law, then the textual meaning is the law, the meaning of the text. In other words, once you have promulgation, the intention drops. Out and this will go to our intentionalist and Professor Ekins-

Richard Ekins (00:42:17):
Sorry, my voluntary shake of my head betraying my answer. It’s a very good question, obviously. Promulgation is vital and I’d say that the text to the statute is not the law. It’s an act of the religious legislature, an act of Congress, act of parliament, and the act is the choice of certain propositions to be law.

Now, that choice has to be promulgated, absolutely. And it’s the utterance of the statutory text at the time of enactment publicly that makes that choice authoritative. That is an exercise of the authority that your constitutional order confers on the legislature. By all means, the intention has to be promulgated and it’s promulgated by us reading the text in the relevant context so that the intention can be recognized.

The sort of private reflections of the lawmakers and the letters they send afterwards are very interesting in the sort of clash between them, likewise. I don’t think you can exercise legislative authority without making the lawmaking intention manifest to the people you are exercising authority over.

I’m not wanting to let promulgation slip, but I think it’s entirely consistent with what you are doing when you legislate, is to make your lawmaking intention and will precisely the intended meaning of the text in question clear. I think your lawyers are very good at handling texts in lots of ways. I think we mislead ourselves to think that the text itself is the law rather than the meaning that is made known one to the community by uttering the text.

Kevin Walsh (00:43:51):
Good. I’m going to pitch this to you.

Donald Drakeman (00:43:53):
There’s something a bit-

Kevin Walsh (00:43:53):
Oh, go ahead.

Donald Drakeman (00:43:55):
I’m sorry. I’ll be quick. There’s something, a bit question begging about saying that the text is the law because then you have to say, “Well, what’s the meaning of a text?” The meaning of the text is not in the… You can go word by word and say, “Here are the range of possible meanings.” But you have to make sense of it and to make sense of it, you have to start getting into some questions like, “Wasn’t this a communicative act? Is somebody trying to tell somebody else something?”

Which in fact, it is. It is a lawmaker telling the public what the law is and as a result, very hard to sustain, except in theory, which of course what we do, but except in theory, it’s very hard to sustain an argument that words mean only some sort of objective fact found in a dictionary published somewhere.

Tara Grove (00:44:52):
I want to begin by agreeing with some of what my interlocutors have said. I think that sometimes textualist have said sloppily, “The text is the law.” It is true that promulgation is important. And actually I think for textualists, that’s where the intent matters. It’s the intent to sign on to this legislation. And then the text is the law that bicameralism for presentment provides a rule of recognition for federal statutes. That’s how we know stuff gets into the statute at large, and that’s what we interpret.

But the fact that the text is the law doesn’t tell you how to interpret that law. I think that’s why it’s important that folks like Dean Manning have focused on the bicameralism and presentment process itself and the power that it gives to political minorities to bargain for compromises as a way of understanding why sometimes statutes don’t make sense.

Even when they don’t make sense, you kind of have to enforce them as they are. Now, all that said in some of my more recent scholarship that different from the stuff that Professor Walsh mentioned earlier, I’ve been digging into, well, how do we actually interpret the text? And I do want to say this about a lot of textual scholarship up till now. When textualists talk about well, how do we figure out plain meaning? They’re usually doing it in kind of the defensive, while we’re not going to look at purpose. We’re not going to look at substantive canons most of the time and we’re not going to look at legislative history.

But then that leads to the question, well, what are you going to look at? And that’s actually one of the things that I’ve been dealing with in recent work. I have a new paper on textualism and precedent, statutory precedent, and I’ll just tell you, one of the things I’ve found is that a lot of textualists look at prior Supreme Court case law to figure out what words mean.

And that’s by the way, not just in the world of statutory interpretation. If you look at Heller in Constitutional Interpretation of the Second Amendment, Justice Scalia did that too. They look at case law, Supreme Court precedent, typically from the era of enactment or prior cases, trying to figure out the meaning of statutes from the era of enactment.

They also look at, of course, surrounding structure. They look at dictionaries, but they look at a lot of stuff. I actually think one of the big challenges for textualism is figuring out, well, which stuff counts? And that’s a lot of what my Which Textualism piece was about in recognizing that there were divisions among textualists about that.

The other thing I’ll say, and I think in this way, Professor Ekins and I probably agree and Professor Drakeman may agree as well, there are an increasing number of people who argue that the text is the linguistic meaning. This has driven a lot of scholarship, much of it, critical of textualism and some of it is empirical. Scholars have recently gone out and surveyed the public. “All right, here’s a little snippet of the statutory text. Here’s a scenario, what do you think?”

And the idea being if 51% or 60 or 70 or 80 or 90% of the public thinks X, that must be the ordinary meaning of the statute. Now, my reaction to this scholarship when I first came across it was, “Are you kidding me?” So I apologize if anybody’s a follower of this, but I found this baffling. But it’s a thing now, and I think it comes from this idea that ordinary meaning is this linguistic, ordinary conversational meaning, such as the meaning of a federal statute is like a conversation on the street or a TV ad.

Actually, some scholarship writes like this. It’s astounding to me. One of the things that I tried to do in a recent essay and I’m doing in my current papers to push back against this. Statutes are law and law is a special language. That’s why when I said to my mom very early on in my career, she said, “What are you working on?” I said, “I’m writing a paper about standing.”

She looked at me, my mom’s not a lawyer. She looked at me and she was like, “So your next paper is going to be on sitting and then walking?” This is direct quote. Well, I think this underscores the point to everyone in this room. You know exactly what I was talking about. I was talking about Article 3, standing doctrine, the way you get into federal court, but to a non-lawyer, that’s absurd. Because standing is a very ordinary term. Law is a special language, a special legal language and should not be treated as a matter of linguistic fact.

Kevin Walsh (00:49:27):
Well, I’d like to open it up for questions from the audience but I’ll just have one provocation since we’re all mic’d so I have the mic for a moment. I would just suggest that part of the shame of our disagreement and our loss of understanding of how to interpret legal enactments is, I think, the fact that we haven’t had constitutional amendments. Because why would you put out into this world that is so confused?

Why would you put new text out and as an expression of a lawmaking act, which is a shame. We’ve lost the activity of lawmaking and we might be in a vicious circle. To that, now not friendly note, I’ll open it up in the back. Yeah. Please wait for a mic to come over.

Speaker 7 (00:50:22):
Thank you. I might simply be advertising my own philosophical deficiencies but I wonder if Professor Grove’s concept of objectified intent isn’t really the key to showing that this whole supposed Graham conflict between intentionalism and original meaning is really just elusory.

It just seems to me that there may be so much overlap between these concepts, people using different words to mean the same thing. In furtherance of that, let me present this challenge to the intentionalists. Let’s assume that, we’ll say a statute is enacted in 1850, that’s interpreted to mean something. And then 20 years later we get a discovery of a sworn statement by all the enactors that a phrase that seems to say something meant something completely different.

Now, so here you have the evidence is as sure as you can want it to be, that the actual intention, the subjective intention of all the enactors was something different. But surely we enforce the objectified intent in the law, do we not?

Kevin Walsh (00:51:35):
You’re here and you’re there but-

Richard Ekins (00:51:37):
Fine, so is this an elusory distinction, the difference? It touches on some things that Professor Grove arrived on, I think. And when I think about Justice Scalia’s interpretive work, and you’ve probably, everyone in this room has read many more of his cases than I have, but I’ve read some, and I very often agree with how Justice Scalia interprets particular legal materials.

I thought his interpretive practice was better than his interpretive theory. There are points, I think, where the theory makes a difference and the unwillingness to try to discern what Congress intended will result in a different understanding. When you deliberately close your eyes to what you can infer from the other evidence was the decision that was made.

Now, the example you give of your 1850 statute and so on is one that I’m not terribly discomforted by. I encourage you read the last chapter of my book on letter 17, which sort of talks about precisely this.

It’s an old idea and a good one, of course. Because I think one has to infer in the intention of the lawmaker and this is the consistent common law practice for good reason from publicly available evidence. This is partly the significance of promulgation. Now that this, we haven’t really talked much more about the difference between subjective and objective intention.

But I’m certainly adamant that legislative intent does not collapse to the congressional record, the parliamentary record. In England, we forbade reference to the legislative history in this sense till about the 1980s, I think. Even now, we’re pretty dubious on it. Consistent though with thinking, when we read a statute, we are reading a deliberate decision by an agent and we should marshal the materials with a view to inferring what their decision is from the publicly available evidence.

In a sense, I think it’s impossible for there to be the conspiracy of the legislators where they secretly intend something that they haven’t made manifest by their collective action. But even if they did, they’re all simply trying to disprove my theory. I’d be unimpressed by it and not think the legal system should respond, which you likewise. But I think that’s consistent with the priority of legislative intent and for this, making a difference in some cases. I think Justice Scalia was sometimes wrong when he interpreted statutes because of the theory leading him astray.

Kevin Walsh (00:53:54):
Professor Drakeman, did you want to follow up on that?

Donald Drakeman (00:54:00):
I don’t think I can improve on that. I think that’s a very good answer. With a statute, it’s an easy one, unlike your constitutional amendment question, which is that if all those legislators thought it was interpreted badly, they’d just write another statute that is a lot clear about how to interpret it. I will leave it to you.

Kevin Walsh (00:54:24):
Okay, very good. We have a question in the front here, please.

Speaker 8 (00:54:36):
Hi. The Constitution begins, “We the people of the United States,” and then says, “do ordain establish the government.” So in my view, that is the ultimate lawmaker. The ultimate sovereign through which all lawmaking power derives and all the people, legislatures are all just agents of the people. So why isn’t it the people’s understanding of what the constitution or statute means that should be the lawmaker?

Kevin Walsh (00:55:09):
I think we’ll… Professor Drake, did you hear the question and can you take the first crack at answering that please?

Donald Drakeman (00:55:21):
One would be, I don’t think any of us are arguing in favor of an interpretation that nobody understood. But the people, when they’re engaged in lawmaking, decide to do it through agents like conventions or congresses and we allow them to make laws in as Professor Grove said, the language of law, which is not necessarily the language of every member of we the people.

Some of whom in founding era America, by the way, did not speak English and were only exposed to the constitution in translation in their native languages. That adds a whole nother set of issues. But I’ll start with that, is that we delegate this law making to somebody and that’s what we’re talking about when we’re searching for the intention of the lawmaker in the way that Professor Ekins and I have described.

Kevin Walsh (00:56:26):
Thank you. Yes. Right in the front, here. Please wait.

Speaker 9 (00:56:33):
Hi. My question. It might actually be a topic for research or maybe a panel. It goes to the monetary system, central banking, what we use for money. I would point to Article I Section 10 of our Constitution, “No state shall make anything but gold and silver coin, a tender and payment of debts.” And those words were written primarily by Roger Sherman, a founder who in 1752 wrote a paper titled A Caveat Against Injustice Or an Inquiry Into the Evils of a Fluctuating Medium of Exchange.

They were very well aware then that paper credit money could become a tool that extracts wealth from those who labor and transfers it to more vested interests. Very clear that documentation there also an Andrew Jackson’s farewell address that we’re meant to have a money circulating that isn’t easily inflated to reward primarily those who even are in urban areas versus those who labor to produce the food of a nation.

Kevin Walsh (00:57:36):
Okay. Well, I’ll take that. Was there a question at the end in terms of intention? In other words, are you asking-

Speaker 9 (00:57:44):
Well, actually, I would contrast maybe the understanding of intent, going back to this man’s question about we the people. The law is supposed to be of the people and the law isn’t meant to be something that the people can’t even engage in themselves.

But of course, the world has become such that, yeah, we have to employ professional lawyers to argue a point. Closer to the time of the founders, a representative might have been thinking more of representing what their people, their constituents wanted. Whereas today, with the nature of campaign donations, they’re perhaps-

Kevin Walsh (00:58:20):
I’ll take this one.

Speaker 9 (00:58:21):
They’re looking more to please those who finance their campaigns to get reelected.

Kevin Walsh (00:58:26):
I will say Article I Section 10 is a very challenging provision of the Constitution. It’s interesting because professor mentioned this Wilberger case, one of the challenges, so I would say my first instinct would be as question of interpretation, WWJMD, what would John Marshall do? But this is a problem in including for Article I Section 10, you have the Contracts Clause, for example. It’s a very challenging one.

Interestingly, John Marshall sold dissent in a constitutional case came in a case called Ogden versus Saunders, in which he used some of the very same language that Professor Grove mentioned. I do think that there is some broad agreement even on some harder questions. How we address them today is more challenging.

One more question from the audience. We’ll go right in the back there.

Speaker 10 (00:59:26):
Thanks. I want to address the question of who is the author of the Constitution in some sense. We’ve heard of this, it’s we the people who are the legislative power here. I want to shift the focus a little bit to thinking that it’s the states who transferred sovereignty to the federal government.

So it’s not the entire we the people as an undifferentiated mass, it’s the states. That leads to some interesting consequences. This was highlighted recently by an article by Brad Clark and A. J. Belia that just came out in the Notre Dame Law Review. They point out that in a situation where one set of sovereigns is transferring certain sovereign rights to another sovereign, that the Law of Nations governed interpretation of such an instrument.

They posit that the US Constitution was such an instrument. They say, first of all, that any transfer, any such transfer of rights had to be in clear and expressed terms. And they also point out that according to the Law of Nations, it had to be interpreted according to the ordinary and customary meaning as of the time of adoption. Those are their thoughts and I’m interested in the reaction of the panelists to that.

Kevin Walsh (01:00:54):
Well, Professor Drakeman, I think I will pitch this one to you insofar as some of the… But I will say this idea or some of our questions focuses on something that I think is in common among all the panelists, which is how to understand the Constitution as law depends on what kind of law it is.

And then we’re off to the races though in debating that because the question includes, I’d say some fairly Jeffersonian premises that you might find in St. George Tucker or something like that. But Professor Drakeman and this will be the final answer from the panel and we’ll take this up in the reception. So Professor Drakeman.

Donald Drakeman (01:01:43):
Well, my first instinct is to say if the speaker is correct, then this session should have been about how to interpret the Articles of Confederation, which remain our governing document.

That is the clearest case of a delegation by the states to a central government. That has not as far as we know, been done away with. I think if you look in the international law context and look more broadly at what people from Gotius and Pufendorf and all the way back to [inaudible 01:02:26] and a variety of others in the Catholic intellectual tradition for that matter.

You’ll see that the Intentionalism that Professor Ekins and I have described from Aquinas on forward actually goes back way further than that. And would be found as much in matters of legal agreements between sovereigns as anybody else. I’ll go back and look at that some more because it hasn’t been my focus, but I think that is certainly an interesting question to which I don’t have an equally interesting answer.

Kevin Walsh (01:03:04):
Well, please join me in thanking our panelists and our hosts at Heritage Foundation, [inaudible 01:03:11]. We are done.

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