Legal Commentary

I am a great admirer of Kurt Lash's work on the Ninth Amendment. His series of articles on the subject has convinced me that, if one focuses on its "original public meaning," the Ninth Amendment is best understood as a federalism-protecting measure -- that is, a rule requiring a narrow construction of Congress? powers to protect the right of the people to collective self-government through their state governments. Like some other sophisticated originalists -- Caleb Nelson, for instance -- Lash is painstaking and fair-minded about evidence and, best of all, original in his arguments. So Lash's work and his recent post provide me with a sort of acid test of whether I could ever subscribe to originalism, seen in its best light. Precisely because Lash's originalism is so good, my dissatisfaction with his argument is explicable only on the ground that even the so-called New Originalism about "original public meaning" is too arid to constitute a satisfying theory of meaning.

Here is my problem with this whole semantic enterprise of "original public meaning." The inquiry into such meaning requires sociology, not lexicology: Constitutional terms like "the rights ... retained by the people" refer not to some trans-historical nugget of meaning, some referent like the Potomac River to which "the Potomac[k] River referred in 1791 and still refers today. Instead, such terms are ideologically loaded markers referring to what Wittgenstein would call a "form of life" -- a vast array of values, beliefs, and points of salience that have often vanished long ago. Assuming that some judge with the powers of Quentin Skinner actually succeeded in reconstructing this array of beliefs, she would never enforce it, because it would be too unpalatable to the modern society that, in the long run, chooses the judges.

Take, for instance, Lash's effort to reconstruct the meaning of the Ninth Amendment's phrase, "rights ... retained by the people." Lash argues -- correctly, in my view -- that this phrase refers (inter alia) to the people's collective rights of self-government. But why believe that such rights are threatened by Congress? powers but not state legislatures? powers? One must answer this question in order for the idea of "narrow construction" to have any content. The answer, however, is rooted in a sociology that no modern judge would ever enforce -- specifically, the Country Party suspicion of the influence that chartered corporations (the South Sea Company, the Bank of the United States, the Society of Useful Manufactures, etc) allegedly wielded in metropolitan venues like London, New York, or Philadelphia. The idea was that a cabal of well-connected financiers tended to gain special monopolistic privileges from the national legislature (especially privileges to underwrite public debt) but not at the state level, where muddy yeoman in small-town state capitals (Albany, Harrisburg, Richmond, etc) held sway.

If one has such a conception of centralization the threat to ?liberty,? then it is easy focus on subnational government as the antidote. It is also easy to imagine a judicially manageable doctrine that would implement the sociology: Do not let Congress, for instance, charter banks that are majority-owned by private investors and that enjoy immunity from state taxation. Andrew Jackson, indeed, enforced precisely such a constitutional rule.

But does anyone seriously expect a modern court to enforce such a theory today, when there are only 27 million people (out of roughly 300 million) employed rurally and only 2 million family farms? Does anyone expect federal courts strictly to scrutinize federal laws creating or regulating corporations or the banking sector (the special target of Country Party and, later, Jacksonian, wrath)? Of course not. So Lash?s theory of the Ninth Amendment, stripped of its sociological soul, boils down to a vague and non-justiciable requirement that Congress? powers be ?narrowly? construed (whatever that means), without any accompanying account of what such narrow construction is supposed to accomplish.

Could there be a sociologically sensitive originalism? Sure, but it would so enlarge the set of sources that judges would need to consult that the original judge-constraining purpose of the theory would be lost. Instead, one would enter some Larry Lessig-style realm of free-wheeling "translation" of 18th century Country Party norms into 21st century analogues. Country Party priorities in the 18th century, for instance, might translate in the 21st century into an anti-preemption canon of construction, especially if the state law being preempted is regulating a financial corporation. Lash's articles reject such fancy-pants translation and choose choose parsimony of historical sources over sociological depth, consulting only one piece of secondary literature, Saul Cornell's excellent book on the Anti-Federalists).

In short, originalists need to choose between their institutional and interpretative priorities: Constrain judges? Or accurately capture the sociological underpinnings of language? The two goals do not mix, which makes the theory, even when as well-executed as it is in Lash's hands, a dead end for me.