Daniel Koffler, a blogger at The Art of the Possible approvingly links to a Richard Posner article at The New Republic critical of decision in the landmark Second Amendment case District of Columbia v Heller. As Koffler has also criticized originalism (also here), this presents a good opportunity to provide rebuttal to both of their positions. Please note that when I use the term "originalism", I will refer to "original meaning originalism" (interpreting the text based on the meanings as understood at the time of ratification). Any other "originalism", like "original intent" originalism, will be referred to by name.
I will not comment on Posner's article, as Ed Whelan cover much of the same ground I would (save for one major disagreement at the every end of the second point he makes...). I had anticipated to comment, but as I read Koffler's criticisms of originalism, I found that some of the criticisms I had reserved for Posner would apply here as well. In addition, as Koffler attempted a lengthy criticism on originalism, I thought it would present an opportunity to rebut his arguments.
Koffler, by using a construct of "Scalia Original Meaning", suggests that Scalia makes it up as he goes and engages in pseudo-sophistication under the guise of originalism while employing the same methods of interpretation used by living constitutionalists. Furthermore, things get a little more complicated because while some of the criticisms of Scalia or judges in general being ideologically biased have merit (Randy Barnett has argued that Scalia is not an originalist at all), it does not necessarily follow that Heller can not be justified on originalist grounds. Part of what I will need to do is, as best I can, separate the claims that can be made against Scalia's jurisprudence and focus only on originalism qua originalism.
Koffler's critique of originalism is very long and covers a lot of ground, but I will attempt to focus on three main criticisms: i) interpreting the Constitution according to its original meaning requires, in practice, the same leaps of faith employed by non-originalists to interpret text and meaning; ii) even if the original meaning of the Second Amendment were known, the right to own a handgun for self defense cannot be reconciled to the text; and iii) (2 parts) originalism is doomed to failure if we recognize that the text of the Ninth Amendment protects unenumerated rights and that Heller is radically damaging to libertarian readings of the Constitution.
In interpreting this text, 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); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). 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.
From this, Koffler proposes a three-pronged approach to Scalia's interpretive method:
First, cast backwards to the temporal setting in which the expression was introduced into the law...but go no further than back than that. Second, determine the context of usage based on what, in present-day language, appears by a principle of parsimony to be the most salient context without consideration of any historical factors that might have shifted the saliences of alternate contexts. Third, ...keep up the exclusion of all historical or other information extraneous to the selected context and determine the ordinary and/or normal meaning at the time of the adoption of the expression into law in the context selected as salient by present-day semantic considerations, by evaluating all usage in the context selected in the second step and deleting all technical or otherwise specialized usages...
In my opinion, the only part of Koffler's three-part analysis that squarely reconciles to the Scalia quote above is Part 1 because Part 1 is the only part that deals with constitutional interpretation (i.e. determining the linguistic meaning of the text). What Part 2 and Part 3 represent, collectively, is constitutional construction, or the application of vague or indeterminate text in order to create legal rules pursuant to the meaning of that document, and nothing in Scalia's quote addresses construction. The distinction between interpretation and construction is crucial and is a key component of originalism. Randy Barnett, a noted originalist and author of Restoring the Lost Constituiton, in a recent post at The Volokh Conspiracy, writes (my emphasis added):
In my view, where the (original) meaning of the Constitution is vague, we should select constructions that are consistent with that meaning and that enhance whatever it is that makes a constitution legitimate. Because people operate with different implicit conceptions of legitimacy (e.g. consent, justice, democracy, etc.) there is marked disagreement about how to do construction. Of utmost importance is that, depending on their theory of legitimacy, originalists who are committed to respecting the original public meaning of the Constitution can still differ on how they think construction should be done and, even if they agree about this, they may differ in the wisdom of different constructions. But when these disagreements arise, it is very useful to know what it is we are disagreeing about: not the meaning of the Constitution, but how to put that meaning into effect.
Koffler, in describing Step 2, is not describing interpretation. Rather, he is describing constitutional construction, and he is doing so in a way that is wholly incompatible with constitutional construction in an orignalism framework.
Step 2 has no business whatsoever being included in a procedure for determining the original meaning of an expression. By applying contemporary considerations of the relative saliences of candidate contexts and having selected one and excluding all others from further work in the application of the semantic theory, one is applying a filter to the expression under consideration that cuts its ties to its original context. The derived context step 2 establishes is in fact roughly the way we would project an expression from an earlier period into the present and then try to make an inductive guess about its meaning — in other words, if we see the law as a body of doctrines that evolve along with language and with history, such that what is important about a legal expression is what it most plausibly means under contemporary lights, then step 2 is the way to go.
I am in complete agreement with his first sentence, but the rest of the paragraph is troublesome. Here, I believe he is not only confusing interpretation with construction, but also suggesting that going outside the text at all in any circumstances amounts to living constitutionalism. Yes, an originalist would apply the relevant facts and circumstances to a given case or controversy if text is vague and/or indeterminate. Yes, there is no one agreed-upon method that this sort of evaluation could be carried out which, admittedly, may lead to a possibility of conflicting conclusions (although I do not believe this to be the case for Heller). However, 1) original "context" is not important because it is "original meaning" is (to me, others may disagree) legitimate and therefore binding; 2) we are not "projecting an expression" in order to "make an inductive guess" about its meaning. We can ascertain the meaning of "commerce" or "necessary and proper" or "the right to bear arms". What we are doing is creating a rule of construction that respects the meaning or the underlying text and enhances legitimacy; and 3) although constitutional rules may be applied to situations that the Framers themselves never anticipated, it does not follow that originalists agree that the meaning of the text has somehow changed.
If Scalia were indeed drawing out the original meanings of Constitutional provisions, incidentally, then he would conclude that the “arms” to which the 2nd Amendment refers would include in its domain things like muskets, old-timey artillery, sabers, etc., and definitely not Glocks. If the interpretation were loosened of literal constraints, it would open up to include military grade weapons along with handguns. The clear context in which the right to bear arms is embedded in the Constitution is as a check on tyranny — i.e., so that citizens could arm themselves and overthrow the government — and as armaments in a militia. In each case, the context ensures that military-grade weapons will be among those to which citizens have a right. If the scope of “arms” is broadened to include contemporary arms and not just the weapons of the colonial period, then the true spirit of Scalian originalism would find a Constitutional right to own AK-47s, rockets, tanks, F-14s, etc. Scalia of course rejects such an interpretation.
Nowhere in Koffler's construction of the word "arms" does he mention "weapons" or "pistols", either of which could have easily been constructed from the word "arms" and would certainly apply to Glocks. To do so would not be living constitutionalism, it would be a simple construction that not only ties to the original meaning of the word arms but also is a "legitimacy-enhancing" feature because of the construction, by permitting handgun ownership for self defense, does not infringe upon one's own natural right to self defense, a common law right predating the Constitution. The "literal constraints" are nothing more than vaguaries and limitations of a text that was written 200 years ago.
Suggesting that originalism would suggest that we have to allow a constitutional right to own a F-14, tanks, rockets, etc. implies a belief that rights are absolute and beyond the reach of the legislators, ignoring "appropriate" state police powers that regulate rightful conduct and prohibit wrongful conduct. Given the public health/safety concerns and the negative externalities associated with high explosives, bans on possessing those types of weapons are not unreasonable. There are probably a couple more reasons as well, but this brief explanation ought to suffice. I think originalist constitutional construction could lead us to these conclusions as well although I will not provide an example.
That said, he seems to disparage originalism (no pun intended) on Ninth Amendment grounds:
So-called originalists loathe the concept because it creates a platform for reading elements into the Constitution that could have had no place in its original composition (like the “umbral” right, if you will, to use birth control, which follows from the penumbral right to privacy). But the problem for the originalist position — and the reason, I argue, it is ultimately untenable — is that the 9th Amendment is in the Constitution, and can’t just be read out of it without vitiating originalism.
Understandably, if one were to take Robert Bork's "inkblot" comment and associate it with originalism (his was in the context, if I recall, of original intent originalism), then it could lead someone to suggest what he says to be the case. However, originalism, especially understood by classical liberals and libertarians, makes the best case for protecting unenumerated rights both under the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment. Randy Barnett goes into great length to argue this case in Restoring the Lost Constitution. If one does not have the text on hand, there are journal articles available at SSRN that addresss both of these parts of the Constituiton (9th here and 14th here).
If he is serious about the Ninth Amendment (and therefore serious about the Privileges or Immunities Clause of the 14th Amendment), then he should reconsider his argument that Heller is "radically damaging" to libertarian readings of the Constituiton and apply that argument to Griswold v Connecticut, which, in my view, is a legal abomination. Heller is a Second Amendment case where the majority protected an individual liberty against an overly intrusive government. That is very libertarian and refreshing to see someone finally recognize that the Second Amendment really does mean what it says it means. The Ninth Amendment was virtually read out of the Constitution decades ago (and was not the basis for the majority opinion in Griswold) so there is nothing Heller could have done that had already been done.
Why Griswold? Prior to 1937, the Court, under the Due Process Clause of the Fourteenth Amendment, did protect unenumerated rights, mainly economic liberties under what was known as "freedom of contract". Basically, the Court viewed that the terms in which contracts were to be established was a private matter. Therefore, maximum hours laws, minimum wage laws, laws preventing yellow dog contracts, etc. were struck down by the Supreme Court. Admittedly, these were (are) controversial cases (i.e. Lochner v New York) that draw ire from today's liberals and conservatives. There were also two key privacy-related cases involving education that were decided under the Due Process Clause of the 14th Amendment (Meyer v Nebraska and Pierce v Society of Sisters).
This changed dramatically in 1937 when the Supreme Court virtually repudiated this jurisprudence in West Coast Hotel v Parrish (upholding a minimum wage law) and further signifying the death knell in U.S. v Carolene Products in 1938 where, in a footnote (Footnote Four), the two-tiered system of rights we have today was basically established. In short, in practice, any potential violation of an enumerated right gets heightened scrutiny and unenumerated rights are left to the whims of democratic majorities. This is, obviously, very unlibertarian, but more importantly, it ignores significant portions of the text (like the Ninth Amendment).
Justice Douglas' Griswold opinion does two things: 1) it specifically repudiates the pre-1937 Due Process jurisprudence that can protect those rights not enumerated in the Constitution by employing a presumption of liberty and putting the burden on government to justify its action (under modern jurisprudence, the burden rests on the individual). Meyer v Nebraska would be a great precedent for Griswold; and 2) his "penumbras" are an attempt to suggest privacy as an enumerated right by suggesting that privacy has substantive protections in several of the enumerated rights in the Bill of Rights. Justice Goldberg's concurring opinion mentions the Ninth Amendment (and recognizes the protection of unenumerated rights) but the majority opinion does not. The fact that those "penumbras" may exist in the Ninth Amendment, as Koffler suggests, plays no role here because the majority opinion does not cite it.
Both Koffler and I agree with the substantive outcomes of both Heller and Griswold but take opposite positions on whether or not each case was well-reasoned. Yet, despite our disagreements, I am pleased by Koffler's attention to the Ninth Amendment and the protection of unenumerated liberties. That said, I am uncertain as to how far Koffler would be willing to take his argument. He speaks of being "plausible" under the Ninth Amendment without defining what "plausible" is (would he, for example, argue the federal minimum wage law unconstitutional under freedom of contract? Would he repudiate West Coast Hotel v Parrish?). Furthermore, how does view on the Ninth Amendment reconcile with the rest of the text (specifically Article I, Section VIII and the Tenth Amendment)?
I make these points largely in part because I do not know or presume to know Koffler's positions on these matters, but it also flows from my general skepticism towards advocates of "privacy rights" (mainly on the Left), who hold a very limited (if not perverse) view of what privacy really is. If he's interested, he is more than welcome to share them.