As I studied for my ConLaw final, this question popped into my head: How can people claim to be able to wring objective meaning or “original intent” out of vague phrases like “the freedom of speech,” “equal protection of the laws,” and “due process of law,” when constitutional experts can’t even agree whether or not the Senate is allowed to turn away Roland Burris?
A few weeks back, I got into an interesting back-and-forth with an originalist Scalia fan who asked, if we’re allowed to go beyond “original intent” with the Constitution’s vaguest, most general provisions, then why can’t we cleverly re-invent its more objective ones? The example he gave was this: The Constitution requires presidents to be 35 years old, but back in 1789, average life expectancy was undoubtedly much shorter than it is today, so you could argue that the Constitution enacted only the “principle” of having a middle-aged president. Today, a middle-aged president might be 40, or 45, or 50 (sorry, Barack, looks like you’ll have to wait).
My response was that many constitutional provisions are essentially policies (each state gets two Senators, president must be 35, the state can’t make you host troops during peacetime) whereas others, mainly the provisions of the Bill of Rights, are essentially principles. Of course, reasonable people can disagree about what the principles of equal protection and free speech entail for specific governmental policies. But the Burris debacle has revealed that it’s not just the sexy First and Fourteenth Amendments that are open to honest scholarly disagreement. Yale prof Akhil Amar says the Senate can “easily” reject Burris; local HLS prof and HPR interviewee Mark Tushnet agrees, as do Larry Tribe and Jack Balkin. But UT law professor Sandy Levinson has been using Balkin’s own blog to repeatedly bash the idea of rejecting Burris. Eugene Volokh backs him up, as do Brian Kalt and, in the Los Angeles Times, UC Irvine law school dean Erwin Chemerinsky. (If you’ve heard of even one of these people and are female, please call me ASAP.)
These people all have different constitutional philosophies, and perhaps none of them is exactly an originalist in the Scalia mold. But by the same token, none of them thinks that original intent is irrelevant in this debate, and I suspect that if there were some foolproof way of discerning that intent, they would stop the analysis right there. But there’s not, and they don’t. Reasonable and even eminent people can differ on the meaning of the Constitution. But Scalia and his ilk think they can nail down the Constitution’s meaning armed with only a history book and a dictionary.