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Originalism and Penumbral Cases

December 1, 2011

Originalism is proposed as an objective way of applying enacted laws to new instances (cases). It is the preferred jurisprudence of conservatives, though on today’s Supreme Court, only Clarence Thomas is an avowed practitioner.

Why do conservatives favour originalism? Or, more broadly, what is its appeal?

In a now famous example offered by H.L.A. Hart, a piece of legislation reads, “Vehicles are forbidden in the park.” It is supposed to be clear that driving a car or motorcycle is in violation of the law. (These are “easy cases.”) But what, Hart asked, about baby buggies? Baby buggies are in some respects like cars and motorcycles (a mode of transportation); but unlike them in others (they are not motorized, and hardly impinge on the activities of pedestrians).

A judge asked to determine whether a mother wheeling her baby about the park was in violation of the law was faced with what Hart called a “penumbral” case: an instance not clearly within the scope of the law, not clearly outside its scope. In other words, according to Hart, the law doesn’t forbid baby buggies from the park, but neither does it allow them.

So, a judge in applying the law is, of necessity, engaging in judicial legislation. It doesn’t matter whether the judge finds the mother guilty or innocent; in either case, the judge has legislated, since he has gone beyond what the law says. Hart hopes that judicial legislation will aim at the greatest good. But as it is to be expected that any law will encounter penumbral cases, judicial legislation will be needed, over and over.

One attendant consequence is that judges have usurped the function of the legislative branch. But, Hart argues, that’s just life in the legal realm. It can’t be otherwise. If judicial legislation can be avoided, and if originalism is the way to avoid it, then this is a big advantage of originalism.

Suppose a judge was an originalist. How would she proceed? She would hold, as an originalist, that the meaning of the words of the statute was determined by what the original legislators meant by them. And brief statements of originalism say simply that much. If this can be made to work, then judges would be constrained to apply the law in the sense which the original legislators had in mind. There would be no room for judicial legislating.

What is the “meaning” of the law that its makers are thought to have had in mind? As Originalism spins it out, meaning is specific instances covered by the law – or in philosophical jargon, original meaning is original extension. Thus, since capital punishment was common when the eighth amendment was ratified, the original ratifiers are presumed to have thought that capital punishment was not the infliction of a “cruel and unusual punishment.”

Originalism makes easy cases out of what were, for the Supreme Court, hard ones. (I do not say this is a defect.) For example, the execution of juveniles was not uncommon in American history, both before and after the ratification of the Bill of Rights. According to, from 1642 through February 2005, at least 366 juveniles were executed out of about 20,000 confirmed executions in United States history. Were all members of the Supreme Court originalists, they would have avoided the agonies of deciding Roper v. Simmons (2005), which held that the execution of minors (under 18) violates the U.S. Constitution. The originalist argument would have been simple: minors have been executed before and after the passage of the Bill of Rights; therefore the “cruel and unusual clause” cannot have been thought of (by the original ratifiers) as applying to the execution of minors; therefore the execution of minors does not violate the constitution.

I do not wish here to argue for or against originalism as a general approach to applying the law (though I raise a small but general doubt at the end). I principally wish to show that originalism cannot avoid penumbral cases.

Suppose a judge adheres to originalism. She is faced with a law that forbids X-ing, and arms herself with the history of what did and did not count as X-ing when the law was enacted. The law was enacted at time t. History shows that a, b, c, and d were thought of as X-ing at t, and e, f, g, and h were thought of as not X-ing. If the case to be decided is one of a through h, then it’s an easy case. Suppose it’s a; a was thought of as X-ing at t; therefore the law forbids a. Suppose it’s e; e was not thought of as X-ing at t; therefore the law does not forbid e.

Now, suppose the law forbids X-ing, but the case at hand is new: it’s not one of a through h. It appears to be a penumbral case on originalist grounds. Since instances of what did and did not fall under X-ing – that is, what the original legislators thought did and did not fall under X-ing – are extremely important in the originalist framework, the originalist judge will have to determine whether this new case is more like instances allowed by the original legislators or more like the instances thought forbidden. This is judicial determination in the absence of historical guidelines. We thus seem to be back at judicial legislation.

And maybe, originalism is just the wrong approach. A rule for a certain religious group reads, “Weapons are not permitted in the temple.” When enacted, typical weapons included daggers, scimitars, and swords. Now guns are invented. Guns were not in the extension of “weapons” for the original legislators. Are they forbidden in the temple? Clearly, they are weapons. But an originalist decider has to ask what seems to be an odd and irrelevant question: Are guns like or unlike daggers, scimitars, and swords? Guns are like these in some ways, unlike them in others. This seems to make guns a penumbral case relative to this rule. But aren’t guns plainly forbidden by the rule? For that matter, aren’t baby buggies plainly forbidden by the rule in Hart’s example?


From → Philosophy

  1. Barry Goldman permalink

    I think this is right. There is no way to avoid judicial legislation. The way it’s done is with sleight of hand. If an originalist wants to continue executing juveniles he rules that the founding fathers didn’t think it was a problem. If he wants to allow buggies in the park he rules that the founders never intended the word vehicle to apply to buggies. The slide between the meaning of a term and the intent of the provision that contains the term is the hidden move.

  2. My originalist – i.e. the character in my essay – presents hard historic evidence of what was thought of as falling under the law, and not falling under the law. And still penumbral cases will arise, since circumstances will come about that are not part of the originalist’s historical list.

    Your originalist – maybe more like real-world originalists – does engage in surreptitious judicial legislation. Your originalist relies on something like intuitions of reasonableness or justice, but proclaims them historical facts.

  3. Duffy Baxter permalink

    As soon as I hit the word buggy and then thinking of that as it related to vehicles the word that came to mind was ontology.

    While this was a interesting discourse to me (maybe not to my non computing/programming brethren)
    I thought of a large ontological system to be applied to reviewed and amended law. When a law is made that specifies “vehicle” it really is legislative laziness. Apply the ontology and allow such to have broad and or specific classifications that refer to systems that can be clearly updated.
    One might argue that in a specific classification system like this that there is no way to list all variations or FUTURE classifications of vehicles such as buggies but the burden of finding the proper classification would drive the law maker to be clear in properties (i.e. Large over 100lbs or 10mph moving vehicles that can cause harm by collisions) of what the law intends. Edge cases would still need review but perhaps we might have a reduction in the effort required for thar review.

    • To be sure, a law that merely says “Vehicles are forbidden in the park” is asking for it. However, even if you specify further the meaning of “vehicle” the law can still encounter penumbral cases – or as you call them “edge cases”. E.g., has an airplane that makes an emergency landing in the park violated the law? Are sailboats in the lake in the park forbidden?

      It’s not that you couldn’t tighten up the law to cover those cases; but even a tight(er) law will be penumbral relative to some instances. The world is a pretty odd place sometimes.

  4. Stephen Sachs permalink

    My sense is that many originalists would deny that “original meaning is original extension.” One contrary widespread view is that “original meaning is original intension.” See Christopher Green, Originalism and the Sense-Reference Distinction, 50 St. Louis U. L. Rev. 555 (2006), .

    • Thanks for the reference, which I’ve looked over. What Green misses is how original intension (“Original Sinn”) is to be determined – determined in a historical and objective way. What could the evidence for original intension be except instances thought at the time of a law’s enactment to be included/excluded – i.e. original extension?

      • “What could the evidence for original intension be except instances thought at the time of a law’s enactment to be included/excluded – i.e. original extension?”

        I think there are two points here. 1: Is that while it is true that instances at the time of enactment are *evidence* of original intension, they may not *constitute* original intension. 2: We can also look at what those at the time of the law’s enactment gave as the *reasons* for any particular expected application.

        In both cases, the point is one of abstraction. In many cases, law operates by articulating a rule or standard which is in turn believed to apply to a concrete case in a particular way. We may well know enough about a rule or standard– both through example cases and through discussion of that standard directly– to be able to say that it was misapplied, even from the very beginning.

      • I agree that there is a distinction between evidence for original meaning and what original meaning really is. The Green article that Steve Sachs directed me to posits “Original Sinn” – original sense or intension. But even granting that there is such a thing, the originalist needs to know what it is in enough specificity to decide a case at hand. Otherwise, “Original Sinn” is akin to Ronald Dworkin’s “right answer in legal cases,” which is the answer given when the right rules and the relevant principles with their correct weight are applied correctly. Suppose there is such a thing. Can we know – in a practical sense – what it is? And so I repeat myself: “What could the evidence for original intension be except …?” After all, the originalist presents herself as giving an objective methodology for deciding cases (one, by the way, that is not supposed to touch on precedent, except perhaps to overrule it).

        You write, “We may well know enough about a rule or standard– both through example cases and through discussion of that standard directly– to be able to say that it was misapplied, even from the very beginning.” If this is to be congenial to originalists, the “example cases” must be somehow evidence of what sorts of things the original legislators thought were governed by the law. Otherwise, they’re only cases, rightly or wrongly decided in accord with original meaning. It appears, on originalist grounds, that a rule is “misapplied” if and only if it departs from original meaning.

        If someone were to hold that the range of cases decided under a rule in the early history of that rule constitute evidence for the original meaning of terms in the rule, then this would significantly depart from originalism, which holds itself out to be THE standard for deciding cases, at any point in history.

  5. Let me be more concrete. Things like: Abstract statements made in the Federalist Papers, comments made during the drafting convention and during the ratification debates, comments made in the first few Congresses when debating the constitutionality of various measures, statements in judicial opinions, and even background principles found in related legal documents can all inform us about the original “intension” of a provision in was that might differ from its original “extension.”

    Originalism asks the interpreter to imagine himself as a judge or officer at the time the provision was enacted. Just as a judge or officer at that time might have been able to criticize a contemporaneous case on originalist grounds (consider the dissent in the Slaughterhouse cases, or the legislators who debated the constitutionality of the Sedition Act), a modern originalist can criticize those originalist decisions too, if they seem to misapply the original intension of the Constitution.

    • You make two points that may be at odds with one another.

      I now realize that the originalist method I outlined – a kind of legal induction from instances thought to be included/excluded in a law by its original legislators – is not the only originalist method. (It may, from some comments I’ve received, not be originalism at all.) If, as you suggest, a judge employs “abstract statements made in the Federalist papers” etc., then she is firming up “Original Sinn”. However, Original Sinn has to be complete enough to allow for a deductive inference to determine the case at hand. If not, there is room for judicial legislation (“discretion”) and therefore we have a penumbral case, not fully determined by Original Sinn. And therefore originalism welches on its initial promise which was to provide an objective, factual decision.

      Your second point (paragraph) needs some supplementing. The interpreter is not merely to imagine himself as a judge or officer at the time the provision was enacted. He is to imagine himself as a judge in possession of the fully correct Original Sinn of the relevant terms of the rule. In philosopher’s jargon, he is to be an “ideal observer.” But this is a normative concept, and already presupposes that we have an account of the fully correct Original Sinn.

  6. Barry Goldman permalink

    Suppose the law says no vehicles in the park. Suppose I invent a jetpack and land in the park. And suppose I defend myself by saying the drafters of the legislation could not possibly have intended to prohibit jetpacks because jetpacks didn’t exist until I invented them. I take it that’s what you are calling an originalist argument.

    But suppose the prosecutor responds by saying that what the drafters originally intended was to keep the park safe for pedestrians. They did that by prohibiting potentially dangerous means of transportation. Jetpacks are potentially dangerous means of transportation. Therefore they are prohibited. Wouldn’t that count as originalist too?

    My point is that judicial legislation is unavoidable. You can’t write a law that covers all future cases. You can’t think of what hasn’t been discovered or invented yet – by definition.

    There are no clear cases because when the law applies clearly there’s no point in bringing a case.

    The question most cases pose is: What would the drafters of this legislation have wanted to do in this case if they had thought about it and they knew what we know? And the answer is: What do I want to do in this case? and What kind of post hoc justification for that ruling can I produce?

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