Harry Potter and the Framers' Intent

Monday, Oct. 22, 2007

Speaking at Carnegie Hall last week, J.K. Rowling, author of the phenomenally popular Harry Potter series, revealed that Albus Dumbledore, the headmaster of the Hogwarts School of Witchcraft and Wizardry, is gay. Rowling explained that she was prompted to out the fictional Dumbledore when she noticed a reference to a female romantic interest of his in a draft of the screenplay for the planned sixth Potter film.

If the film version of Harry Potter and the Half-Blood Prince makes Dumbledore's sexual orientation explicit, then that will settle the matter, at least so far as the fictional cinematic version of Dumbledore is concerned. But given that the Potter books, now complete, make no mention of Dumbledore's sexuality, Rowling would not appear to have any authority to declare the print version of Dumbledore gay, straight or bi. Her views on such matters are naturally of interest to fans of her books, but the work must stand on its own.

These principles may seem obvious enough when considering the relation of a fiction writer's intentions to her text, but they are highly contentious when it comes to legal documents. In the balance of this column, I will explain why James Madison is no more of an authority on the meaning of the U.S. Constitution, than J.K. Rowling is on Dumbledore's sexual orientation.

Authors and their Texts

A reader can make what she wants of any given text, but some interpretive methodologies better suit some kinds of texts than they do others. If I agree to go shopping for my neighbor, I will want to interpret the grocery list he gives me in accordance with what I believe he intends. If, for example, the list includes "half gallon milk," and I know that he is a vegan, I will read "milk" to refer to "soy milk," even though in common parlance "milk" means "whole milk from a cow."

People read fiction for all sorts of different reasons. A book can be merely entertaining. A historical novel can be educational. A good book will typically be emotionally satisfying. Great literature teaches lessons about the human condition. In just about every case, though, the specific intentions of the author seem less important than the objective characteristics of the work. When faced with ambiguity, the reader will want to choose an interpretation that makes the story best hang together. Indeed, ambiguity itself will sometimes provide the most satisfying interpretation.

To be sure, learning something about an author's intentions or life experiences may lead a reader to discover an interpretation that might not otherwise have occurred to him. Knowing that Ernest Hemingway reported on the Spanish Civil War, and strongly favored the Republican side in the conflict, gives one a handle on some of the books he wrote after that experience. Knowing that Norman Mailer fought in the Pacific helps one appreciate The Naked and the Dead as not only a work of the imagination but also as an accurate depiction of combat during World War II.

In the end, though, an author of a work of fiction is, at best, first among equals in interpreting that work. Her intentions do not control the meaning of the text.

What Kind of Text is the Constitution?

Is the U.S. Constitution more like a grocery list or a novel? Some self-styled "originalists" answer that the Constitution is like a grocery list. Where the text is at all unclear, readers should take instruction from the intentions of those who framed the document.

There are a number of well-known objections to this view, not least of which is its unhelpfulness. For example, people who lived in 1791 likely had no intentions at all on the question of whether the Fourth Amendment requires the government to obtain a warrant before engaging in electronic surveillance of telephone calls and email exchanges.

Still, originalists can and frequently do say that even if we cannot always discern a definitive original intent, we should try our best to do so. The alternative, they claim, is worse: Judges invoking ambiguous constitutional language as a pretext for substituting their own subjective value judgments for policy choices made by elected bodies.

From Original Intent to Original Understanding

Yet even if the intentions of the Framers are clear, why should those intentions control later interpretations of the Constitution's text? Responding to just this question, in recent years many originalists have abandoned the subjective intentions of the Framers in favor of the original public meaning of the words they used.

"Original public meaning" originalism begins with the insight that it was the decision of the People to ratify the Constitution that made the document binding law, and thus the meaning the words had for the participants in ratification that matters. Finding a determinate subjective intent of all the different people who voted to ratify the Constitution--and their constituents--is a hopeless task, but we can bypass that task entirely, contemporary originalists say, by focusing on the words they ratified. For example, if we know how a reasonably well-informed citizen in 1789 would have understood the phrase "executive Power," then, this theory holds, we know what We the People enacted in ratifying the Constitution and, says the originalist, we know what "executive Power" means today.

The shift from the subjective unexpressed intent of the Framers to the original public meaning of the Constitution's words improves originalism, but it still begs the question I have posed. Inquiring after original public meaning, rather than Framers' intent, recognizes that the People as a whole--rather than the small number of men who met in Philadelphia in 1787--were the Constitution's true "author." Knowing that fact, however, does not tell us whether we should regard the Constitution as more like a grocery list written by tens of thousands of people (the number who voted in the early days of the Republic), or more like a novel written by that same host.

What Makes the Constitution Binding?

To answer this key question requires us to ask why the Constitution, in 2007, has legitimate authority over us. The originalist has a simple answer: Because the original document was ratified in 1789, and the amendments were ratified thereafter in accordance with Article V.

But this answer has a glaring difficulty: the so-called "dead hand" problem. By what authority do people long dead rule us from the grave?

The common solution to the dead hand problem is to point to contemporary tacit consent. By choosing not to amend the Constitution's essentials, contemporary Americans have accepted the Constitution, and thus rendered it legitimate.

But now we must ask a further question: In tacitly consenting to the Constitution, do contemporary Americans accept the Constitution as they understand it, or as a small fraction of the white male population understood it 218 years ago? As I noted in a 2002 column, most Americans have only a vague idea of what the Constitution even says. How likely is it that they accept the original public meaning of the text they barely know?

If these considerations render all forms of originalism problematic, they do not point clearly towards any particular method of constitutional interpretation. One could think that the Constitution's meaning evolves with changing public mores but still worry that judges are not best situated to express those evolving mores.

In other words, even if some of Us the People think that the Fourteenth Amendment's Equal Protection Clause is best read in 2007 to permit Dumbledore to marry whomever he chooses, regardless of sex, the Supreme Court might nonetheless decide not to recognize his right to do so until it sees a clearer social consensus on the point. The one thing the Court should not say, however, is that Dumbledore cannot marry a man in 2007 simply because same-sex marriage was not allowed in 1868, when the Fourteenth Amendment was ratified.

Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.