Not the most common threesome, it’s true, but united in this interesting piece by Joel Alicea and Donald Drakeman, The Limits of New Originalism.  For those that don’t know Drakeman’s work, you should check out his terrific Church, State, and Original Intent (here are some thoughts I wrote up about the book).  

The new piece argues that the “new” originalism faces an important problem when originalist materials point toward “two or more equally persuasive original public meanings.”  The authors focus on what would ordinarily be a relatively obscure tax case from 1796 — Hylton v. United States — which involved the constitutionality of a federal tax on carriages.  The case was actually cited fairly extensively by CJ Roberts in his NFIB opinion for the discussion about the direct taxation issue (see pp. 40-41).  The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South (the strategy used to get to the Supreme Court at all is pretty neat too).  The case pitted Hamilton against Madison (who had argued against the tax’s constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and “what to do when the best evidence of contemporary usage points in two directions.”  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources — dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the “foreign Lexicons” of “consolidated” as opposed to “confederated” governments, commentaries, poems (do see Andrew Marvell’s verse on the excise tax as a “thousand eye[d]” “monster” — eat your heart out, Argus!), ratification materials, congressional debates, and so on.

The Court, as CJ Roberts noted in NFIB, unanimously upheld the carriage tax as an excise tax.  Hamilton won the day, arguing that Adam Smith’s definition of a tax in The Wealth of Nations “was probably contemplated . . . by [the] Convention.”  The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers’ intentions.  The reason for this focus is best summarized by Justice Paterson: “the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain.”  And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings.  The authors call it original intent as tiebreaker: “when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question ‘What were the framers actually trying to accomplish in using this language?’ rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?” (59)

The very last part of the piece points up that this is “not just a horse and buggy issue” and applies some of these same arguments to the interpretation of the Establishment Clause.  The trouble is that studies of the meaning of “an establishment of religion” end up in the same sort of “semantic circle” that obtained in the taxation context.  Even the issue of direct tax support of churches was not universally understood to mean an “establishment” (see, e.g., Chief Justice Smith’s opinion in the New Hampshire Supreme Court decision, Muzzy v. Wilkins).  “For some,” the authors write, “mandatory taxes collected for the support of a particular church constituted an ‘establishment’ and, for others, they did not.” (69)  In that context, the New Originalist may be well served by a bit of old originalism — by inquiring into original intent.  That evidence may not be dispositive either.  But perhaps it might help.