Originalism and Political Ignorance
George Mason University - Antonin Scalia Law School, Faculty
March 2, 2012
Minnesota Law Review, Vol. 97, No. 2, pp. 625-668, December 2012
George Mason Law & Economics Research Paper No. 12-28
Original meaning originalism may now be the most popular version of constitutional theory in the legal academy. The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across the political spectrum.
Original meaning is usually interpreted as focusing on the public understanding of the meaning of a constitutional provision at the time of ratification. This makes it essential to try to determine what the public actually knew and understood about the meaning of specific parts of the Constitution at the time they were enacted. If most of the public knew little or nothing about the constitutional provision in question, it may be difficult or impossible to determine its original meaning.
The evidence of extensive public ignorance on even very basic political issues suggests that such situations might well be quite common. Yet none of the rapidly growing literature on original meaning has so far grappled with the reality of widespread public ignorance.
This article begins the task of filling the gap in the literature. Part I describes the ways in which various theories of original meaning implicitly depend on assumptions about public knowledge. The problem is most severe with respect to determining the original meaning of provisions that are relatively vague and open-ended and least so when it comes to those that are more clear and precise. However, many of the most important disputes in constitutional law involve the former. The available empirical evidence on political ignorance suggests that the public may well have been poorly informed about many constitutional issues at the time of ratification. Indeed, political ignorance is actually rational for most voters.
In Part II, I consider several possible solutions to the challenge posed by political ignorance. These include relying on the perceptions of political elites, looking to contemporary coverage of constitutional issues in the popular media, and assuming that the public divined an original meaning after all, by relying on “information shortcuts.” Each of these approaches has some merit, but all also have important shortcomings. Part III briefly considers two ways in which originalists could respond to the challenge of political ignorance by modifying their theories: adopting a presumption in favor of literal over figurative interpretations of constitutional text, and leaving more issues to be resolved by construction rather than interpretation.
Political ignorance is not a terminal problem for originalism, and certainly does not discredit the theory completely. But it is an important issue that both originalists and their critics need to pay more attention to.
Number of Pages in PDF File: 45
Keywords: Akhil Amar, ambiguity, ambiguous, Antonin Scalia, Clarence Thomas, democracy, distinction, enact, framers, Gary Lawson, history, intent, Jack Balkin, James Ryan, John McGinnis, Keith Whittington, Michael Stokes Paulsen, participation, Randy Barnett, Rappaport, Robert Bork, semantic, Steven Calabresi
Date posted: March 4, 2012 ; Last revised: January 3, 2013