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Lawson on Original Meaning

Gary Lawson is one of the foremost contemporary scholarly advocates of originalism. Anything he writes on that subject must be taken with the utmost seriousness. Accordingly, I wish to treat with his approach to constitutional interpretation because it illustrates one of the principle quandaries faced by today’s constitutional originalism.

Professor Lawson writes that “Sandefur’s attempt to decouple constitutional meaning from anyone’s intentions … is partly right and partly wrong.” He elaborates: “Communicative instruments such as the Constitution have meaning only in light of intentions … . [T]he Constitution’s meaning is determined by the hypothetical, legally constructed intentions of a hypothetical, legally constructed reasonable observer of 1788.” Professor Lawson goes on to agree with me that “a non-arbitrariness principle, even if applicable to most actions by the federal government, will not necessarily yield all of the results that Sandefur (or I) think are prescribed by the Constitution, such as the unconstitutionality of a federal statute forbidding segregated rail cars.” Nevertheless, he thinks that the original meaning of the Constitution would forbid a statute mandating racial segregation because “eighteenth-century fiduciaries were under a presumptive obligation to treat all principals fairly, which roughly corresponds to what today we call ‘equal protection.’” In his scholarship, Professor Lawson has assembled support for the claim that in the eighteenth century, governments were widely viewed as exercising a kind of fiduciary power, to which obligations of reasonableness and evenhandedness applied.

Based on this understanding of the original meaning of the Necessary and Proper Clause, as well as the Fifth Amendment’s Due Process Clause, Professor Lawson concludes that racial segregation violated the 1788 Constitution, as well as the 1791 addition of the Fifth Amendment. Readers with even a passing familiarity with the history of segregation, of course, will note that something extraordinary is going on. There is, of course, good reason that Professor Lawson invokes “the hypothetical, legally constructed intentions of a hypothetical, legally constructed observer” rather than the actual intentions of any actual observers circa 1788 or 1791. That is because pretty much no one actually alive then thought that the Constitution contained anything that prohibited racial segregation. As Michael Klarman has demonstrated, even after the Constitution added an express requirement of “equal protection” in the Fourteenth Amendment, it was widely agreed that segregation was permitted in both state and federal legislation.

Professor Lawson’s “hypothetical, legally constructed observer” would have been considered quite the oddball in 1788 if he announced that the Necessary and Proper Clause, or the Due Process Clause, forbade segregation in the District of Columbia, where it was instead widely practiced well into the twentieth century. Thus, although Professor Lawson tells us that the meaning of a legal text cannot be determined without reference to the intentions of those who are properly regarded as its authors, he offers an account of original meaning that matches the actual intentions of few if any of those actually involved in the framing and ratification of the 1788 Constitution or the amendments that followed in its wake.

Presumably, what Professor Lawson means is that we need not worry about the actual intentions of 18th-century observers when it comes to racial segregation (or pretty much any other concrete application of the Constitution) because when the Constitution’s text is written at a very high level of generality – such as the Necessary and Proper and Due Process Clauses – it embodies quite abstract principles, such as a requirement of fair treatment. Even putting aside the strength of the historical evidence supporting this conclusion, Professor Lawson’s interpretive methodology raises many questions. For present purposes, I will confine myself to three of them.

First, if we are to ignore the concrete intentions of the framers as to how the Constitution should be applied and treat its broadest language as not rule-like but rather as imposing abstract, standard-like principles that can lead us, as in the case of racial segregation, to quite different concrete applications than were contemplated in the framing era, does this brand of originalism differ from living constitutionalism? If the Necessary and Proper or the Due Process Clause, understood in terms of their original meaning, give us no guidance other than a guarantee of “fairness,” then this brand of originalism can be used to justify virtually any result that the modern judge regards as “fair.” If a judge thinks that taxes are too high and exemptions for the wealthy are too generous, thereby depriving some taxpayers of “liberty” or “property” unjustifiably while awarding equally undeserved lenient treatment to capital gains, why not invalidate the Internal Revenue Code as “unfair”? Or, if the judge doesn’t like the siting decisions that the federal government makes for oil refineries, why not do the same? As I argue in a paper forthcoming in the Indiana Law Journal, the central problem faced by the prevailing brand of originalism, which rejects original intended applications as controlling, is that in practice it operates no differently than nonoriginalism. If the fiduciary obligations of those who exercise governmental political power include “fairness,” a judge can decide that pretty much anything is unconstitutional, no?

Second, why is Professor Lawson so uncertain about whether his conception of the fiduciary obligations imposed on government apply to the states? If it is really true that one of the basic obligations imposed on any exercise of governmental power is that it be “fair,” for example, is this not an aspect of “due process of law” applicable to the states by virtue of the Fourteenth Amendment?

Third, even if we are to accept Professor Lawson’s account of the framing-era normative conceptions about the manner in which governmental power should be exercised, what is the evidence that original meaning included a conception that these limitations would be judicially enforceable? After all, as Ryan Williams has demonstrated, there was not a robust tradition of judicial review of the substance of legislation at the time of the Fifth Amendment’s adoption. Did the framers really mean to give the judiciary the power to apply highly abstract standards? After all, we know that the framers intended to create a republic. If they also created a life-tenured and politically unaccountable judiciary that could set pretty much any legislation at naught by branding it “arbitrary” or “unfair,” perhaps what they created fell far short of a republic — something more like a judicially supervised nanny state. And, if we can only preserve our republican form of government by insisting on a degree of judicial deference to legislative policy judgments, is there really that much difference between Professor Lawson’s originalism and my plea for judicial prudence and humility?

Also from This Issue

Lead Essay

  • Why Substantive Due Process Makes Sense by Timothy Sandefur

    Timothy Sandefur argues that the phrase “due process of law” is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. “Citizens are entitled to procedures only because they are entitled to lawful treatment,” Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Response Essays

  • Not So Fast, Mr. Sandefur by Lawrence Rosenthal

    Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. “The First Amendment expressly limits the scope of legislative power,” he writes, “[but] the Due Process Clause does not.” Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn’t necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

  • Substantive Due Process in Historical Context by Ryan Williams

    Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of “due process of law” did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

  • Would Half a Loaf by Any Other Name Throw Out the Baby? Why Sandefur is Both Right and Wrong about Substantive Due Process by Gary S. Lawson

    Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.

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