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Originalism and Political Ignorance Ilya Somin University of Minnesota Law School Scholarship Repository Minnesota Law Review 2012 Originalism and Political Ignorance Ilya Somin Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Somin, Ilya, "Originalism and Political Ignorance" (2012). Minnesota Law Review. 345. https://scholarship.law.umn.edu/mlr/345 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article Originalism and Political Ignorance Ilya Somin† INTRODUCTION Original meaning originalism may now be the most popu- lar version of constitutional theory in the legal academy. It has been endorsed by well-known conservative scholars such as Robert Bork, John McGinnis, Michael Stokes Paulsen, and Ste- 1 ven Calabresi, libertarians such as Randy Barnett, Gary Law- † Professor of Law, George Mason University School of Law. For helpful suggestions and comments, I would like to thank Jack Balkin, David Bern- stein, Michelle Boardman, Steve Calabresi, T.J. Chiang, Jamal Greene, Bruce Johnsen, John McGinnis, Michael Rappaport, David Schleicher, Mark Tushnet, the editors of the Minnesota Law Review, and participants in the University of San Diego annual Originalism Works in Progress conference, and the George Mason University School of Law Levy workshop. I would also like to thank Chaim Mandelbaum and Ryan Facer for helpful research assis- tance. Copyright © 2012 by Ilya Somin. 1. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITI- CAL SEDUCTION OF THE LAW 144 (1990); Steven G. Calabresi, A Critical Intro- duction to the Originalism Debate, in ORIGINALISM: A QUARTER-CENTURY OF DEBATE 1, 12, 35 (Steven G. Calabresi ed., 2007) [hereinafter Calabresi, Intro- duction] (arguing that constitutional interpretation should be based on “the original meaning of the constitutional text”); Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 TEX. L. REV. 1, 3–4 (2011); Steven G. Calabresi & Livia Fine, Two Cheers for Professor Balkin’s Originalism, 103 NW. U. L. REV. 663, 664, 701 (2009); Vasan Kesavan & Mi- chael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Draft- ing History, 91 GEO. L.J. 1113, 1141–45 (2003); John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703, 791 (2002) [hereinafter McGinnis & Rappaport, Our Supermajoritarian Constitu- tion]; Michael Stokes Paulsen, A Government of Adequate Powers, 31 HARV. J.L. & PUB. POL’Y 991, 991 (2008) (“There is only one correct way to interpret the Constitution, and that is original public meaning textualism.”). McGinnis and Rappaport have more recently advanced the theory of “original methods originalism.” John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construc- tion, 103 NW. U. L. REV. 751, 751 (2009) [hereinafter McGinnis & Rappaport, Original Methods Originalism]. However, I treat this is as a variant of “origi- nal meaning.” See discussion infra Part I.A.2. 625 626 MINNESOTA LAW REVIEW [97:625 son, and Michael Rappaport,2 prominent left of center academ- ics such as Akhil Amar, Jack Balkin, and James Ryan,3 and other leading scholars such as Larry Solum.4 It is also advocat- ed by well-known originalist jurists such as Antonin Scalia and Clarence Thomas.5 Some leading scholars still reject original meaning 6 originalism and continue to criticize the theory forcefully. And 7 a few originalists still adhere to the original intent school. But 2. See, e.g., RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 89 (2004) [hereinafter BARNETT, RESTORING THE LOST CONSTITUTION]; Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 620 (1999) [hereinafter Barnett, An Originalism for Nonoriginalists]; Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47, 48 (2006) (arguing that the Constitution should be interpreted as understood by the “reasonable Ameri- can” in 1788, the time of ratification); McGinnis & Rappaport, Our Supermajoritarian Constitution, supra note 1, at 802–05. 3. See, e.g., JACK M. BALKIN, LIVING ORIGINALISM 6–7 (2011) [hereinaf- ter BALKIN, LIVING ORIGINALISM]; Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 28–29 (2000); Jack M. Balkin, Abor- tion and Original Meaning, 24 CONST. COMMENT. 291, 293 (2007) [hereinafter Balkin, Abortion and Original Meaning]; Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427 (2007) [hereinafter Balkin, Original Meaning]; James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 VA. L. REV. 1523, 1524 (2011). Ryan de- scribes the theory he and others endorse as “textualism.” But it is clear from the context that the version of textualism he has in mind is based on the origi- nal public meaning of the text. He refers to “original meaning” as the newly dominant view in constitutional theory. Id. at 1524–26. 4. See, e.g., Lawrence B. Solum, Semantic Originalism 1–2 (Ill. Pub. Law & Legal Theory, Research Papers Series No. 07-24, 2008), available at http://ssrn.com/abstract=1120244. 5. See, e.g., McDonald v. City of Chicago, 130 S. Ct. 3020, 3075 (2010) (Thomas, J., concurring) (arguing that we should return to the “original mean- ing” of the Privileges or Immunities Clause, defined as “what the public most likely thought the Privileges or Immunities Clause to mean” at the time of en- actment); ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (Amy Gutmann ed., 1997) [hereinafter SCALIA, INTERPRETA- TION]; Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 857 (1989). 6. See, e.g., DAVID A. STRAUSS, THE LIVING CONSTITUTION 7–31 (2010); Mitchell N. Berman, Originalism is Bunk, 84 N.Y.U. L. REV. 1, 8 (2009); Thomas B. Colby, The Sacrifice of the New Originalism, 99 GEO. L.J. 713, 714 (2011); Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 SAN DIEGO L. REV. 575, 583 (2011). 7. See, e.g., KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 3 (1999); Larry Alexander & Saikrishna Prakash, “Is That English You're Speaking?” Why In- tention Free Interpretation Is an Impossibility, 41 SAN DIEGO L. REV. 967, 974–77 (2004). 2012] ORIGINALISM AND POLITICAL IGNORANCE 627 there is little doubt that original meaning has attracted wide- spread support in recent years. In contrast to original intent, which focuses on the person- al intentions of the Framers, original meaning is usually inter- preted as depending on the public understanding of the mean- ing of a constitutional provision at the time of ratification. Justice Clarence Thomas, for example, describes the original meaning of the Privileges or Immunities Clause as “what the public most likely thought the Privileges or Immunities Clause to mean” when the Fourteenth Amendment was enacted.8 Many other leading originalists define the concept in similar terms.9 This understanding of original meaning makes it im- portant to determine what the public actually knew and under- stood about the meaning of specific parts of the Constitution at the time they were enacted. If most voters knew little or noth- ing about the constitutional provision in question, it may be dif- ficult or impossible to determine its original meaning. At the very least, the original meaning might turn out to be very im- precise, especially in cases where the text is ambiguous enough to admit more than one plausible interpretation. Survey data showing extensive public ignorance on even very basic political issues suggests that cases where the public has little knowledge of ambiguous parts of the Constitution at the time of ratification might well be common.10 Yet none of the rapidly growing literature on original meaning has so far grap- 8. McDonald, 130 S. Ct. at 3075 (Thomas, J., concurring). 9. See, e.g., BORK, supra note 1, at 144 (defining original meaning as “what the public of that time would have understood the words to mean”); Amar, supra note 3, at 29 (“What counts as text is the document as understood by the American People who ratified and amended it, and what counts as his- tory is accessible public meaning, not secret private intent.”); see also Barnett, An Originalism for Nonoriginalists, supra note 2, at 620–21 (same). 10. See, e.g., SCOTT L. ALTHAUS, COLLECTIVE PREFERENCES IN DEMO- CRATIC POLITICS 10–14 (2003) (summarizing evidence of extensive voter igno- rance); MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS 62–104 (1996) (same); RICK SHENKMAN, JUST HOW STUPID ARE WE? FACING THE TRUTH ABOUT THE AMERICAN VOTER 13–36 (2008) (same); Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IOWA L. REV. 1287, 1304–29 (2004) (same); Ilya Somin, Voter Ignorance and the Democratic Ideal, 12 CRITICAL REV. 413, 416– 19 (1998) [hereinafter Somin, Voter Ignorance] (same). For an extensive recent review, see ILYA SOMIN, DEMOCRACY AND POLITICAL IGNORANCE (forthcoming 2013) (manuscript at ch. 1) (on file with author) [hereinafter SOMIN, DEMOC- RACY AND POLITICAL
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