Professor Lee Strang Gives a Sneak Peek into His Novel Theory
The goal of the Constitution’s framers and ratifiers, and the goal of government officials and Americans at the Founding and today, he says, is to “understand what the Constitution’s communications were and the public meaning of the text is how we best access that communication.”
When he first began his academic teaching career, one of Professor Lee Strang’s (Toledo College of Law) first pieces of legal scholarship was an article on the original public meaning of the word “religion” in the First Amendment. But while legal scholarship on religion has not necessarily seen an uptick, originalism definitely has, and Professor Strang’s forthcoming book: Originalism’s Promise and Limits: The Law-As-Coordination Account of Originalism will have something to do with that. During Professor Strang’s term as a Visiting Scholar for the Georgetown Center for the Constitution, he completed the book’s initial draft.
Now, that draft will become a published book that explores how to make sense of the Constitution’s creation and ratification and its purpose, what Professor Strang calls the “constitutional communication model of originalism.” The goal of the Constitution’s framers and ratifiers, and the goal of government actors since the Founding, he says, is to “understand what the Constitution’s communications are, and the public meaning of the text is how we best access that communication.” According to Strang, “the Framers’ goal was to communicate their solutions to coordination problems to the Ratifiers, and the Ratifiers’ goal was to understand the Framers’ coordination solutions in the proposed Constitution that they authorized. Thus, originalism is the mechanism Americans then—and today—utilize to understand the Constitution’s coordination solutions.”
Strang’s conception of originalism links the main strands of originalism. He says that the three prominent versions of originalism (i.e. original intent, original methods, and original public meaning) are not necessarily distinct, given the background of the constitutional convention and state ratification debates between 1787 and 1791.
“If you are one of the Framers at the Philadelphia Convention and you are drafting a constitution to overcome the Articles of Confederation’s problems, and also want to get it ratified by conventions of Americans in the various states, then you know they won’t have access to your subjective, originally intended meaning of the Constitution,” Strang says. “Instead, you rely on the publicly accessible meaning of the text, so you craft the words, the structure, and the grammar of the text so that your intended meaning is packaged into the public meaning which the Ratifiers (hopefully) adopt.” For example, Strang cites the fact that the Framers at the Philadelphia Convention spent ample time working on things like grammar, punctuation, and word choice. Essentially, their meticulous efforts to draft the Constitution makes a lot of sense from an original public meaning perspective.
Furthermore, Strang’s novel case for originalism might surprise even originalism’s critics because it dovetails with his normative justification for originalism. Professor Strang’s law-as-coordination account of originalism supports what he regards as the best method of its interpretation. Strang argues that, if consistently followed, originalism will lead to the background conditions enabling Americans today to best pursue their own human flourishing. Of course, other prolific scholars developed compelling rationales for originalism. To name a few: Professor Barnett’s argument for originalism is that it leads to the best protection of natural rights, and Professors McGinnis (Northwestern) and Rappaport (San Diego) have proposed a consequentialist argument that originalism is the best way to interpret the Constitution because it leads to the best consequences.
Professor Strang says that if you look at the Constitution from a natural law perspective, then the reason for following it becomes clear: “we should follow originalism because it helps us understand the constitution’s solution to coordination problems.” Take the Articles of Confederation, for an example. Among the well-known failures of the Articles of Confederation was the lack of authorization to regulate interstate commerce, which led to some states erecting trade barriers which erupted into (sometimes violent) trade disputes. According to Strang, the Articles of Confederation failed to properly coordinate the American states in their relationships with each other. Such an example exemplifies Strang’s argument, which is that the Constitution embodies the Framers’ and Ratifiers’ solution to coordination problems.
So, after publishing his first legal article on the original meaning of “religion,” Professor Strang’s upcoming book is entering the originalism debate in a big way by re-conceptualizing constitutional interpretation. And this has the potential to extend into current public policy and politics. “For us to be able to understand and follow those solutions, we need to follow the original meaning. If we follow it, it helps us coordinate activities, promoting the general welfare,” Strang says.