What is the spookiest part of the U.S. Constitution? Surely it is Article III, Section 3, Clause 2—the Corruption of Blood Clause:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Corruption of blood? What the hell does that mean? Not much anymore, I suspect. But note one thing that seems perfectly obvious about the clause. Whatever it evokes to a modern reader, we intuitively grasp that its meaning must be excavated from the Eighteenth Century context in which it was drafted and ratified.

What might the clause mean without that historical context? Perhaps it would be interpreted as a restriction on certain occult punishments for treason? Or as a ban on compulsory intermarriage with other classes or races? A prohibition on death by lethal injection?

These are the equivalents of arguing that the true basis of the Bush v. Gore decision lies in the article IV guarantee of a “Republican Form of Government.”

Communication is purposive behavior. We use words to get things done. Meaning, as an element of communicative purpose, is a product of the words used, the author’s intent, the context of utterance, and the audience’s understanding. The context of utterance is (ordinarily, at least) indexed to the time of utterance. The meaning of what we say depends on when and where we say it.

That’s the intuitive basis for originalism. And while I don’t traffic much in originalist jurisprudence myself, I think it’s a mistake not to acknowledge its appeal and the prima facie strength of its philosophical underpinnings.

The “utterance” of a constitutional provision, so to speak, occurs at the time it is adopted, or ratified. Accordingly, its meaning is, all else being equal, its original meaning.

The question then is: is all else equal? Where the text presents us with an unfamiliar locution like “corruption of blood,” in a provision rarely if ever invoked, there is not really much “else” to inquire about. The original meaning is its only meaning. There’s no competition. And so, while the original meaning settles the question in this instance, it doesn’t really win the argument for originalism. No one else showed up to the debate.

Oh, almost forgot: the Corruption of Blood Clause prohibits punishment of the innocent blood relatives of a person convicted of treason. Boo!

A sharp and spirited debate about originalism took place Thursday at Georgia State University between Professor John McGinnis (Northwestern) and Professor Eric Segall (Georgia State). The arguments were familiar ones, but exceptionally well-marshalled. Both landed their strongest points squarely, but neither sufficiently attended the best arguments of the other side.

McGinnis’ strongest point (in favor of originalism) was that, unless we observe the intuitive norm according to which meaning is fixed by the public understanding at the time of ratification, we sacrifice the authority (or legitimacy) which attaches (or should attach) to constitutional language by virtue of its supermajority democratic enactment. Its constitutional character is downgraded in significance by any interpretive manipulation subsequent to ratification.

Segall’s strongest point was that originalists, bending over backwards to dissociate the meaning of the constitution from what the framers thought it meant (i.e., what specific results the framers may have intended), contort themselves into self-defeating positions by vacillating between meaning as a kind of specific, common understanding and a more general notion of semantic meaning. In other words, originalists resort to more abstract levels of meaning when necessary to avoid commitment to specific views of the framers which today might be embarrassing. (For example, “separate but equal.”)

Both of these points are strong, but neither is impregnable. In my view, the problem is deeper than either side is ready to admit—it is that meaning itself may be indeterminate. (I’ll elaborate in a later post.)

If the meaning of a given constitutional provision is indeterminate, it is clearly impossible to fix the meaning at ratification. But, at the same time, the fact that construction or development of meaning may occur after ratification does not entail that originalism as a normative strategy of interpretation must be abandoned. As with the objective theory of contracts, there are persuasive reasons to preserve the original, negotiated meaning of the document wherever such meaning is discoverable—people won’t enter into or abide by agreements if they know that the terms may be manipulated by a judge.

There’s a lot more to say, but that’s all I can muster for now.

Between 1787 and 1804, America made a choice. We chose. We decided that after roughly 17 years of nationhood we would no longer chuse our President, but that thenceforth we would rather choose him.

The Twelfth Amendment (ratified June 15, 1804) states that if no candidate for President wins a majority of the electors, then “the House of Representatives shall choose immediately, by ballot, the President.” Just 17 years before, the House was to “immediately chuse by Ballot one of [the candidates] for President.”¹

But when the nation did resolve to choose, in lieu of chusing, we resolved that we would still hold firm to the choice we made, and our choice would still have been chosen, whether it were chosen by choosing or by good old-fashioned chusing. We did not traffic in chuice, or in choise, or even, so far as I know², in choyce. In that sense, we have always been a pro-choice nation.

So why did we chuse to start choosing?³ I have no idea. But here’s my best guess. Noah Webster, whose 250th birthday is on Thursday (October 16, 2008), had published his “American Spelling Book” in the early 1780s.⁴ As you can see here, Webster spelled the word “choose.” I’m guessing that Webster’s speller reached a tipping point in readership, and everyone hopped on board to the new American spelling.

Or not.

1. U.S. Const. art. II, § 1. [↩]
2. Which isn’t very far. [↩]
3. And was the concept of a ballot no longer important enough to merit capitalization? [↩]
4. See Noah Webster at wikipedia. [↩]

A few notes on last night’s VP debate. Both candidates made some relatively minor slips in discussing constitutional provisions regarding the Vice Presidency.

First, Governor Palin implied that the VP might assume a greater role in the Senate.

Of course, we know what a vice president does. And that’s not only to preside over the Senate and will take that position very seriously also. I’m thankful the Constitution would allow a bit more authority given to the vice president if that vice president so chose to exert it in working with the Senate and making sure that we are supportive of the president’s policies and making sure too that our president understands what our strengths are.¹

It is true that the VP is president of the Senate. In fact, however, the VP’s authority in the Senate is limited to casting a tie-breaking vote when necessary. There is no further authority that the VP may “choose to exert” in that capacity. And whatever parliamentary prerogatives the president of the Senate may exercise, assuredly “making sure that we are supportive of the president’s policies” is not among them.

Later, Gov. Palin noted that the “founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president.” Even if we disagree with VP Cheney’s view that the Vice Presidency belongs to some undisclosed fourth branch of government, it is no doubt true that the office is a “flexible” one. In other words, she’s pretty much correct there in her little reading there of the Constitution.

Senator Biden showed more command discussing the Constitution, but he also slipped up a bit. He seemed to state that Article I defines the Executive Branch and that the VP is part of the Executive by virtue of being described in that article:

Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.²

Sen. Biden’s mistake was that Article II defines the Executive, not Article I. Now, this was probably just a harmless mix-up of the numbers. But the underlying issue is not quite so simple as the Senator wants us to believe. The Vice Presidency does in fact first appear in Article I, describing the Legislative Branch:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. U.S. Const. Art. I, § 3, cl. 4.

Article II, in contrast, ascribes no powers or duties at all to the VP.³ It merely describes the manner in which the VP is elected and provides for the VP’s succession to the Presidency and removal by impeachment and conviction.

So the Constitution is not unambiguous on the question of the “branch”⁴ to which the VP belongs. But the question is more or less academic. And even if you believe that Senator Biden is wrong about the scope of vice presidential duties, the implications are harmless. They would simply mean that Vice President Biden’s would be a relatively restrained tenure in office.

On the other hand, Governor Palin’s lack of clarity about the extent of the VP’s role in the Senate and her apparent embrace of Cheney’s expansive view of vice-presidential power are potentially dangerous. Her misconceptions might portend more brinksmanship in the tug-of-war between Congress and the Executive.

1. See transcript at http://www.cnn.com/2008/POLITICS/10/02/debate.transcript. [↩]
2. Biden completed his answer by saying:

   And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there’s a tie vote. The Constitution is explicit.

   The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he’s part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.

   [↩]

3. Article II does give the president of the Senate the duty of opening the certificates sent from the electoral college in each state. [↩]
4. The term ‘branch’ appears twice in the Constitution, but each time it is used to refer to what we would now ordinarily call a “house” of a polycameral legislature. It is not used to distinguish the legislative, executive, and judicial departments of the federal government. [↩]