In Year Zero, a new constitutional provision is enacted that has two provisions, A1 and B1. In Year X, provisions A1 and B1 no longer seem to make as much sense as they did in Year Zero. Soon after, the Supreme Court interprets A1 to mean A2 and B1 to mean B2. A few decades later, American society has embraced A2 as a universal principle. A1 is not just unacceptable but neanderthal. In contrast, B2 has become quite controversial, and public opinion is now divided between B1 and B2.
The constitutional debate then proceeds as follows:
Originalist: I think we should interpret the Constitution according to the original public meaning at the time of the Framers. We should reject B2 and go back to B1.
Living Constitutionalist: Your argument is truly radical. Although you hide it, your view would require us to reject A2 and go back to A1. Do you really want to go back to the dark days of A1?
Originalist: That’s a false example. I have studied the history carefully, and I think A2 is really the original public meaning of A1. So true originalists get B1 and A2 together — the best of both worlds.
Living Constitutionalist: You’re being disengenuous: A1 and A2 are obviously different. And the problem with originalism is that your world is a world of A1.
Originalist: I disagree, and I’ll also note that you’re being result-oriented. Unlike me, you don’t ask what the true Constitution means. You only care about what strikes you as good policy. I believe we should go back to the Framer’s Constitution — the Constitution of B1 and A2.
Balkinian Originalist: I think you’re both wrong. I’m sort of an originalist, too, and according to my version of originalism the Constitution requires both A2 and B2.
Stare-Decisis Follower: I think you’re all just being result-oriented. Each of you has a theory for reaching results that seem to match your personal preferences. I think we should just follow existing precedents, as imperfect as they may be, because none of these theories seem very persuasive.
Living Constitutionalist: That’s not a very satisfying answer, Stare-Decisis Follower. The implication of your view is that the Supreme Court should never have rejected A1 in favor of A2. So if we go back to Year X, your world still would be the world of A1. We need a theory of a living constitution that recognizes the importance of shifts from A1 to A2. For example, some day it might be clear that we need B3 instead of B2. We need a theory that allows that.
Stare-Decisis Follower: I like A2 as much as everyone else, but I think it’s better going forward not to let judges just shift from B1 to B2 to B3 as they please. A strong view of stare decisis lets us keep A2 while limiting future shifts like that.
Balkinian Originalist: But you’re wrongly assuming that A2 and B2 are not originalist decisions. They are. And I have an originalist case for B3, too.
Originalist: Balkininan Originalist, as much as I like your focus on originalism, I don’t see how you can say B2 (or B3!) is originalist. The original public meaning of B1 obviously is B1.
Tallying up the votes indicates unanimous support for A2, albeit on four different theoretical grounds. On the other hand, perspectives on B1/B2/B3 remain divided, with Originalist favoring B1, Stare-Decisis Follower favoring B2, and Living Constitutionalists and Balkininian Originalist favoring either B2 or maybe B3.
Rich B. says:
Maybe it’s my bias, but as a Living Constitutionalist, the Living Constitutionalist in your drama appears to be the only one who cannot be properly criticized as disingenuous. — Essentially we are all Living Constitutionalists, but only some of us are willing to admit it.
August 16, 2010, 2:20 pmCalderon says:
Somewhat serious question. Is Jack Balkin’s version of originalism so widely followed that his theory should be included in the discussion while alternative theories like Bruce Ackerman’s constitutional moment theory, John Hart Ely’s focus on the constitution as protecting democratic procedures, Akhil Amar’s intratextualism (and textualism more generally), and so forth, are all left out?
August 16, 2010, 2:21 pmkrs says:
BO is my favorite. Rich B. makes me chuckle too… you’ll know you’ve done a good job (and tied into your earlier confirmation bias posts) when other people point out their own caricature counterparts as “the only one who cannot be properly criticized as disingenuous.” Perhaps, though, Justice Thomas would say “yes, my world is a world of A1, B1, and C1 too.”
August 16, 2010, 2:23 pmyankee says:
Isn’t it begging the question to say that A1 and B1 were the principles enacted, and A2 and B2 are new and different principles?
August 16, 2010, 2:28 pmAndrew says:
Ulysses S. Grant once said: “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.”
The same goes for constitutional provisions. The courts should go with A1 and B1.
August 16, 2010, 2:32 pmJRL says:
August 16, 2010, 2:33 pmOriginalist: That’s why there is a process to amend the Constitution. If there is a clear shift in favor of B2 (or B3), then the Constitution can be amended to provide for that.
Rich B. says:
The point was not “my position is obviously right,” but rather, “I did not feel sufficiently insulted by the caricature.” A Living Constitutionalist is — to some degree, at least — explicitly results oriented. Everyone else views “results oriented” as an insult, and tries hard to not look like they are being results oriented, and yet inevitably find themselves being accused of it, with some good reason.
I would think the proper insult to a Living Constitutionalist is that they would have no problem interpreting B1, permitting abortion, to mean R7, mandating the existence of regional rail service between Philadelphia and Trenton.
August 16, 2010, 2:34 pmh2u says:
LOL
I got a good laugh out of this. All this post needed was…
August 16, 2010, 2:35 pmepeeist says:
Amusing and informative, but is there not an “honest originalist” who says A1 is legally and constitutionally correct, but morally wrong? Who acknowledges that while certainly not advocating a return to A1, it would be “better” to amend the Constitution to move to A2 from A1 even if it seemed redundant given Supreme Court precedent?
For instance, someone may think racial segregation vile and morally wrong, but believe that Brown v. Board of Education (while “right” morally) as a matter of Constitutional law, was wrong notwithstanding the unanimous Supreme Court (and think that even at this late date an amendment prohibiting racial segregation would be in order?). Similarly I know some who consider the decision in Roe v. Wade legally and constitutionally correct while abhorring abortion as a great moral evil (they might want a Constitutional amendment, but would consider court-stacking “dishonest”).
August 16, 2010, 2:36 pmAndrew says:
And that quote from Grant should be made into a neon sign on the SCOTUS building.
August 16, 2010, 2:38 pmGuy says:
I think saying the Constitution says A1 is unfair, you should say it says A, which can be interpreted as A1 or as A2, and the original understanding was either A1 or indeterminate because A1 and A2 were co-extensive in light of the factual situation at the time (depending on the specific conflict).
May I propose a thought experiment? Suppose a legislature passes a law saying that the importation of fruits, but not vegetables, is forbidden. The reason for this law is that they don’t want foreign flora taking root, so to speak, on domestic soil, and vegetables can’t be planted. Further suppose that everyone believed that tomatoes were a vegetable, and the case reaches a court many years later, at which point we know that tomatoes are better classified as a fruit, because they have seeds.
Are tomatoes fruits or vegetables?
What if there exists a powerful tomato importation lobby that would have opposed the law if they thought tomatoes were implicated? Does that change the analysis?
What if there used to be a powerful tomato importation lobby at the time of the passage of the act, but not anymore?
I’m not saying the answers here necessarily correspond to specific interpretive theories, but I think these are interesting questions with no obviously correct answers.
August 16, 2010, 2:41 pmDave Kopel says:
Very well-put. I have just two quibbles:
First:
I think the more precise way to express Balkin’s position is “according to my version of originalism, the Constitution permits but does not require both A2 and B2. It likewise permits B3, which we’ll get if we can build enough public support for B3. Under my ‘framework originalism,’ the framework permits tremendous flexibility about the details. So B1 can eventually be replaced with B53, but it can’t be replaced with |#@{%^.”
Second, it might perhaps be unfair to use “neanderthal” as an epithet. Not that I’m an anthropology expert. Just wondering.
Finally, let’s consider one more voice in this debate:
Bi-partisan authoritarian. Judicial review is a hoax, and the parchment of the Constitution must never be allowed to interfere with the will of a transient majority. Natural rights are bunk, and written rights should be interpreted so extremely narrowly as to have no practical effect.
August 16, 2010, 2:42 pmG.R. says:
Theoreticians. Bah. You say the question presented is B1 or B2?
There’s a 1913 concurrence (by Holmes, yet!) that gets you to B1.1 if you read it the right way, and then you just need to distinguish that Roberts opinion (no, the other Roberts) from 1942 on its facts and you get to B1.2. Now, OK, I don’t have anything for B1.3 but a law review article about old English equity practice, but that quote from it looks pretty good, doesn’t it? Thank goodness for that amicus brief from the historians. Getting to B1.4 would be a problem, but that question fortunately isn’t presented here because respondents didn’t manage to get the right evidence into the record, so we’ll deal with that in a footnote. (Good luck revisiting the issue on better facts, guys.) And I’ve got a quote from an AMK opinion while he was still on the Ninth Circuit that gets us to B1.5. Halfway there. On to B1.6 . . .
August 16, 2010, 2:43 pmChris Travers says:
Isn’t that the general view of Living Constitutionalism?
I mean my understanding of these may be way off, but I think the basic definitions would be:
Living constitutionalism holds that the Constitution is a set of “rhetorical norms, themselves unstable and changing over time.” (Quoting Andrew Koppelman) Presumably this is wide enough to include originalism and stare-decisis following as rhetorical norms included under that umbrella.
Originalism indicates we should hold true, to the best of our ability, to the understanding of the authors of the amendment, or in some cases to the ratifiers instead of the authors. Both strike me as originalist positions.
I don’t understand Balkinian Originalism well enough to comment on it. Anyone want to describe it on one sentence?
August 16, 2010, 2:43 pmfrankcross says:
epeeist would that it were so. The truth is that most originalists have scrambled to say that Brown could be justified on legal originalist grounds, not that it was morally right but legally wrong. Some say it was legally wrong at the time but now established precedent so should be followed. I’m aware of no prominent originalists who say that it was wrong and cause for a constitutional amendment to change the law.
August 16, 2010, 2:44 pmJeff J says:
I thought this skit was helpful. But from reading just this, I can’t tell the difference between Originalist and Balkinian Originalist, except that they interpret the original meaning differently as to B2. Do they have different methods of discerning the original meaning?
August 16, 2010, 2:44 pmDJR says:
Orin,
Your caricature is entirely accurate. Was there a hint of disapproval in the post? I didn’t notice one.
August 16, 2010, 2:45 pmNate says:
@Rich B.:
August 16, 2010, 2:46 pmI laughed out loud at that last line.
Nicholas says:
Why does no one propose an amendment to add A2 and eliminate A1? Then you can have A2 and B1.
August 16, 2010, 2:46 pmDJR says:
Yes, because the most successful constitutions are those that are frequently amended.
August 16, 2010, 2:47 pmSmooth, like a Rhapsody says:
Rich:
we are ALL results-oriented?
I know that’s what the Crits (are there any of them left?) used to say; but is there no room for: “if my fellow citizens want to go to hell, my job is to help them get there”?
You think a “results-oriented” Scalia would have the same 4th amendment philosophy the actual Scalia does; or the same views on flag-burning?
August 16, 2010, 2:48 pmh2u says:
Chris, pretty much. But I think the talmudic quote is a lot more embraceable than the loaded “living constitution” phrase. All law, even constitutional law, requires context. I think everyone can acknowledge that.
August 16, 2010, 2:49 pmAndrew says:
Nicholas, Ulysses Grant proposed that.
August 16, 2010, 2:49 pmGuy says:
And another hypothetical situation: What about vegetables that can be grafted, and eventually grow fruit? Are they forbidden?
August 16, 2010, 2:51 pmGuy says:
This is my favorite method, but then when you get to B2 people who haven’t been paying attention complain because their overarching theory rejects it, and the courts are “obviously” wrong.
August 16, 2010, 2:58 pmAndrew says:
DJR, adopting A2 or B2 is no different from a constitutional amendment, except that the American people have no sat about it.
August 16, 2010, 2:59 pmmls says:
The meaning of the Constitution cannot be determined until Justice Kennedy reaches into the bingo cage and tells us if it is B1 or B2.
August 16, 2010, 2:59 pmRich B. says:
“we are ALL results-oriented?”
I don’t know about “we,” but all of Orin’s caricatures are. As I read him, you can be consistent by claiming to be “results oriented” (a living Constitutionalist), or else by denying it and going with A1 (not included in Orin’s dialogue.)
I think Orin’s pretty accurate for actual legal scholars (i.e., excluding people on internet discussion threads who are willing to argue that Brown v. Board was wrongly decided.) Many commenters here are arguing “keep A1 and amend the Constitution,” but that’s not a mainstream Constitutional Theory position. It is more commonly viewed as a reductio ad absurdum, necessitating the creation of all of the interim positions.
August 16, 2010, 2:59 pmAndrew says:
DJR, adopting A2 or B2 judicially is no different from a constitutional amendment, except that the American people have no SAY about it.
August 16, 2010, 3:03 pmGuy says:
No one wants to talk about tomatoes? :(
August 16, 2010, 3:04 pmSteve says:
At least Bork had the balls to admit that paper money is unconstitutional pursuant to the original understanding. Also, I couldn’t disagree with Guy more on Nix v. Hedden, and if they ever ask at my Supreme Court confirmation hearing which precedents I disagree with, that will be the first on the list.
August 16, 2010, 3:11 pmh2u says:
The VC is a hothouse today. See what I did there? ;)
August 16, 2010, 3:11 pmGuy says:
Good eye! That was my inspiration for the example, but your answer proves you to be an unprincipled activist, unlike the Court in that case, who were blind and illogical originalists.
August 16, 2010, 3:14 pmWonks Anonymous says:
Christopher Green’s “This Constitution” might apply to the tomatoes problem.
I’ll identify as a “Neandertal Originalist”. I say it’s A1.
DJR, it could be hard disentangling the causality between success of a constitution and the frequency with which it is amended.
August 16, 2010, 3:18 pmSteve says:
Just because I say Pluto is a planet and Triceratops is a dinosaur, I don’t have to say tomatoes are vegetables!
August 16, 2010, 3:19 pmSkyler says:
In a just world, neither A2 or B2 would be allowed. If the meaning of A1 were really so horrible, then the proper thing to do is to amend the Constitution, not just create new things from whole cloth. Otherwise the Constitution isn’t very useful and simply becomes whatever 9 in robes want it to mean on any day of the week. The Supreme Court is supposed to fill in holes in the law, not change the law.
August 16, 2010, 3:23 pmKevinM says:
It’s crazy to sign on for B 2.0. Wait for B 2.1
August 16, 2010, 3:25 pmAndrew says:
Is it too late to dump Kagan, and put in Skyler?
By the way, framers like Nathaniel Gorham thought that issuing paper money would be okay as a necessary and proper consequence of the enumerated power to borrow. I don’t think Bork ever said that Gorham was wrong.
August 16, 2010, 3:32 pmAnderson says:
The post omits the followup where Cynical Blogger notes that the debate over A1/A2 and B1/B2 is just like the earlier dustup over X1/X2 and Y1/Y2.
August 16, 2010, 3:39 pmKen Arromdee says:
Ignoring factors that might apply to tomatoes but not to the analogy, one consideration might be exactly how to characterize the original “error”. Did people of the time have the same definition of “vegetable” as us but mistakenly thought that tomatoes belonged in that category? Or did they define “vegetable” in a way that we now think isn’t a good definition? I’d be more inclined to say that tomatoes count in the first case but not in the second.
August 16, 2010, 3:43 pmConfused says:
Is the point of this just that few originalists are willing to argue A1 since it would likely spell the end of their judicial/political/legal careers?
August 16, 2010, 3:46 pmGuy says:
That’s pretty close to what I think is my approach for Constitutional interpretation, the problem is it’s hard to say, “vegetable” and “fruit” are often understood primarily by usage, so the exact definition can be ambiguous or elusive. I actually think the stipulated purpose of the law (keeping the fruits’ seeds from being planted) makes clear which of the various potential definitions is the appropriate one in this case. But then it could be argued that the people never thought they were banning tomatoes, and that democracy is being usurped if a judge says that what the “purpose” of the law was doesn’t justify the older understanding/expectation. Even though I’m not persuaded by that argument, I have to admit it has a point. The issue becomes much closer to me when you add the tomato lobby, because then you really are short-circuiting their right to participate in the democratic process, saying they have to seek a repeal or amendment to protect their interests.
August 16, 2010, 3:54 pmAri says:
This isn’t necessarily true. Let’s assume for argument’s sake that a well-known historian suddenly uncovers a long-lost document convincingly demonstrating that Originalist happens to be right, at least in this case, about the interpretation of A1 as A2? Does this change anything?
Now let’s return to Orin’s original presentation: It is interesting that, for the purposes of this thought experiment, you assumed that Living Constitutionalist is correct that Originalist is disingenuously conflating A1 and A2. Orin may or may not have intended this, but I think this is part of the caricature of LC: his argument against Originalist is predicated on an example the premise of which may be demonstrably false. But this does not seem to occur to LC (or at least he doesn’t seriously consider it).
This doesn’t mean that Originalist is right, of course, simply that LC’s rejection of Originalist’s position might be more self-serving than intellectually objective.
My point is that while all the characters in this drama may have other flaws, the common denominator is that everyone in Orin’s presentation is acting in a self-serving manner (which, as demonstrated, may not be immediately obvious to the characters themselves).
August 16, 2010, 4:02 pmDavid M. Nieporent says:
The Constitution does not enact Mr. Carl Linnaeus’s Systema Naturae.
August 16, 2010, 4:04 pmB.D. says:
In this drama, Balkinian Originalists appear to be just another flavor of Living Constitutionalists, except less honest. Originalists are also dishonest with respect to A1/A2, presumably to avoid the harshest of results that would undermine the popularity of originalism. Stare Decisis Followers are boring practitioners who just don’t care what the answer is, they just want a damn answer.
August 16, 2010, 4:12 pmOrin Kerr says:
B.D. writes:
I agree that SDF are boring, but I don’t see why you think they are practitioners or don’t care about the answer. (To which I should add that I am essentially a SDF…..)
August 16, 2010, 4:16 pmgeokstr says:
There are many other choices more reflective of the real world in which we find ourselves:
RepPhilHareism: There is no need to pay any attention to the constitution (whatever that is)
RepPeteStarkism: It makes no difference what the constitution says, we can do anything we damn well please.
Obamanism: The constitution is a deeply flawed document because it doesn’t have any of the things I want in it, like redistribution of wealth and scads of positive rights, so we’ll end run it extra-constitutionally with executive orders, czars, and bureaucratic regulation.
Leftarianism: Consteetution? We don’ need no steekeen’ consteetution.
Orwellianism (closely intertwined with Leftarianism): Words mean anything, everything and nothing, and anyway, we’ve always been at war with EastAsia. Ignorance is Knowledge.
geokstrianism: How’s about we actually at least attempt to inform judicial decisions with the overarching principles enshrined in the constitution by some very smart people who understood what power and human beings together generally leads to and wrote the danged thing to prevent, i.e., this raging out-of-control monstrosity we have governing us now? Principles like limited government, checks and balances, enumerated powers, etc.
August 16, 2010, 4:23 pmAF says:
Orin,
From your past posts, I think your sympathies lie closest to the stare decisis follower. It’s interesting, therefore, that you give him/her the least coherent position. While it may be true that a strong view of stare decisis “limits” the ability to go from B1 to B2 to B3, it hardly prevents it, or even limits it all that much in the long run. All it takes is a long-term thinker like Rehnquist, or Brennan, or Roberts, to move one step at a time in the direction that they want to go, steadily creating precedents for future holdings and undermining past precedents that they want eventually to overrule or abrogate. Even in the absence of a conscious jurisprudential strategy by a particular justice, the law can change significantly over time even when each decision is respectful of precedent.
While the originalists in their different forms may be more overtly disingenous and the living constitutionalist (and the originalists as well) marginally less respectful of judicial restraint, the stare decisis supporter is not accurately representing the consequences of his/her method. In truth, his/her constitutional theory is essentially just living constitutionalism plus gradualism.
August 16, 2010, 4:26 pmChris Travers says:
From the abstract:
Which of these qualifies as rhetorical norms of Constitutional law? I’d argue:
1, 2, 3, 4, and possibly 6.
One of the real issues here is that living Constitutionalism can include, and indeed use, all of the other approaches as needed. This leads to danger of being results-oriented simply because the toolbox is so diverse, so I think it needs more grounding in something. This consequently leads us back to the question of, well, if the Constitution is a set of rhetorical norms in tension and conflict with eachother, and subject to change as that changes, then what is the nature behind those norms? Is it just an expression of society at the moment? Or is it more stable and enduring than that?
August 16, 2010, 4:26 pmRich B. says:
“Let’s assume for argument’s sake that a well-known historian suddenly uncovers a long-lost document convincingly demonstrating that Originalist happens to be right . . .”
The concept of “Originalism” is flawed explicitly because it would accept as valuable information what was contained in the long-lost document.
Makes me want to bury little time capsules all around the country saying things like, “I bet in 100 years, everyone will have forgotten that Due Process was named after Franklin Due, a court officer who required all trials to be completed within two business days.”
August 16, 2010, 4:29 pmChris Travers says:
I’m wondering if we need to replace the field of Constitutional Ontology with Constitutional Oncology…..
August 16, 2010, 4:30 pmB.D. says:
I was only generalizing for effect. Obviously, not all SDFs are practitioners. Some are judges and some are law professors.
A true originalist or a living constitutionalist will always have several wrongly-decided cases to get their dander up. That would seem to lend itself quite nicely to writing law review articles or dissenting opinions.
Practitioners (like me) may have strongly held views about the Constitution or which cases have been wrongly decided, but it behooves us to appreciate guidance from the courts (whatever that guidance is) and not think about it too much. I’m an originalist, generally, but I’m more inclined to be SDF when it affects my work directly.
August 16, 2010, 4:34 pmathEIst says:
ourse we all know the SCOTUS has ruled on the tomatoes fruits/vegetables controversy. It was a tariff issues not a legal/illegal issue.
August 16, 2010, 4:39 pmThis argument has had legal implications in the United States. In 1887, U.S. tariff laws that imposed a duty on vegetables but not on fruits caused the tomato’s status to become a matter of legal importance. The U.S. Supreme Court settled the controversy on May 10, 1893 by declaring that the tomato is a vegetable, based on the popular definition that classifies vegetables by use, that they are generally served with dinner and not dessert (Nix v. Hedden (149 U.S. 304)).[45] The holding of the case applies only to the interpretation of the Tariff Act of March 3, 1883, and the court did not purport to reclassify the tomato for botanical or other purpose
Orin Kerr says:
Ah, got it B.D. Thanks for clarifying.
August 16, 2010, 4:39 pmMark Field says:
Isn’t that exactly what Edmund Burke argued for?
August 16, 2010, 4:40 pmgeokstr says:
Might as well replace it with Constitutional Astrology or even Constitutional Proctology for all the attention our courts and politicians pay to the actual document or the principles that it was built upon. As I’ve said in a prior post, the authors, if they saw what their work had been allowed to mutate into, would probably be at the forefront of a second violent revolution against the secular aristocracy we have now.
August 16, 2010, 4:42 pmAF says:
Isn’t that exactly what Edmund Burke argued for?
Sure, and it’s a good position. But few self-described stare decisis followers — at least those on the right half of the political spectrum — would admit that they are essentially “living constitutionalists.”
August 16, 2010, 4:50 pmAnderson says:
It’s interesting, therefore, that you give him/her the least coherent position.
That’s the beauty of the common law — you don’t need to be coherent, you just follow the precedents.
“The will to a system is a lack of integrity.” — Nietzsche (not a SDF btw).
But of course, the common law does change by degrees, because precedents are based on facts, and facts change. Stare decisis is part of the common law but it is not the *whole* of the common law.
August 16, 2010, 4:51 pmChris Travers says:
You missed my point entirely. Read your post again and then look up the words “oncology” and “ontology.”
August 16, 2010, 4:54 pmAF says:
That’s the beauty of the common law — you don’t need to be coherent, you just follow the precedents.
But Mr. SDF above is participating in a theoretical debate, not deciding actual cases in the common law fashion. His position may be right, but I don’t think his arguments are on target.
To be coherent, the SDF should focus on the pace of change, not the existence of it. In the long run, the common law method (of which the SDF is presumably an advocate) will get you to more or less the same place as living constitutionalism. It will just take longer getting there — though arguably with fewer wrong turns along the way.
August 16, 2010, 5:00 pmJason says:
Could somebody give me an example of an A1? Something that:
1. The constitution (or an amendment thereto) says which
2. Was interpreted literally by the courts at one point in time and
3. Was not fixed by way of constitutional amendment and
4. Is regarded as not merely unacceptable, but Neanderthal today
Is seems to me that part of the originalist argument is that the constitution itself contains a mechanism for fixing any language which time finds problematic.
In terms of outcome, the debate between the various flavors of constitutional analysis is not relevant when there is sufficiently broad agreement to pass a constitutional amendment.
August 16, 2010, 5:10 pmDilan Esper says:
This argument has had legal implications in the United States. In 1887, U.S. tariff laws that imposed a duty on vegetables but not on fruits caused the tomato’s status to become a matter of legal importance. The U.S. Supreme Court settled the controversy on May 10, 1893 by declaring that the tomato is a vegetable, based on the popular definition that classifies vegetables by use, that they are generally served with dinner and not dessert (Nix v. Hedden (149 U.S. 304)).[45] The holding of the case applies only to the interpretation of the Tariff Act of March 3, 1883, and the court did not purport to reclassify the tomato for botanical or other purpose
Did Reagan procure an OLC opinion based on this case that supported his decision to declare ketchup a vegetable?
August 16, 2010, 5:12 pmAF says:
I would think A1 is Plessy v. Ferguson, A2 is Brown v. Board, B1 is pre-Roe, and B2 is Roe v. Wade.
August 16, 2010, 5:13 pmDilan Esper says:
Seriously, this is a great post, and I usually have issues with Professor Kerr’s stuff on jurisprudential theory.
I just wish, personally, that people were (1) a bit more honest about how their own standpoint affects how they interpret the Constitution, and (2) a bit less dismissive of the validity of competing theories. And I include myself in this criticism.
August 16, 2010, 5:13 pmChris Travers says:
Plessy v. Fergusson?
Dred Scott v. Sanford?
Bowers v. Hartwick?
Korematsu?
Those are some ones I can come up with off the top of my head.
August 16, 2010, 5:19 pmDilan Esper says:
Plessy v. Fergusson? Dred Scott v. Sanford? Bowers v. Hartwick? Korematsu?
How about all the sex discrimination stuff? Bradwell v. Illinois, for instance. Is anyone– even on the right– really itching to overturn Craig v. Boren and Reed v. Reed and go back to that era?
August 16, 2010, 5:22 pmGuy says:
Not to nitpick, but you’re conflating originalism with textualism.
August 16, 2010, 5:27 pmfalafalafocus says:
I’m not sure that Dred Scott fits in that mold because there were intervening amendments to overturn that decision. Also, the SDF may point out that Korematsu is alive and well even if the result is disliked by everyone today.
I agree that the other examples are good examples, though.
August 16, 2010, 5:28 pmAF says:
Plessy v. Fergusson? Dred Scott v. Sanford? Bowers v. Hartwick? Korematsu? Those are some ones I can come up with off the top of my head.
I don’t think many self-styled originalists of the non-Balkin variety would say that Bowers v. Hartwick was wrongly decided.
August 16, 2010, 5:31 pmDilan Esper says:
By the way, it’s HARDwick, and I wouldn’t be so pedantic about this except that happens to be a great case name given the subject matter.
August 16, 2010, 5:32 pmChris Travers says:
Ok, my classification of Dred Scott in that has to do with one thing I think the court got blatantly wrong in that decision, namely stating that citizenship could never apply to blacks or to their descendants regardless of whether slave or free. In addition to not freeing Dred Scott, the court essentially stated that no free blacks were citizens or could ever be. Moreover the court ruled that neither the states nor the federal government had the power to recognize even free blacks as citizens. One may think that the due process parts of the opinion were legally correct for their time but I don’t think the citizenship elements can.
One thing about the 14th Amendment is that the framers of it said that the citizenship clause was simply there to cement in place the way the legal tradition generally operated regarding citizenship, namely that it wasn’t intended to change anything.
Today we would consider it barbaric to deny someone citizenship merely because of race. And while this was fixed through Constitutional Amendment, I don’t think the intent of the amendment was to change the system regarding citizenship standards. I.e. it was intended to clarify to the court that jus soli applied to everyone rather than change the system so that it would.
August 16, 2010, 5:36 pmmark says:
Speaking of Living Constitutionalism, I note a Rasmussen poll ten days ago that reports 94% of those polled are opposed to a statement that the federal government should have no limits on what it can do.
August 16, 2010, 5:55 pmClayton E. Cramer says:
If a federal judge had ruled that there was a constitutional right to polygamy, or marriage to ten year olds, there would be screeching and hollering from most of the same people are praising him to the skies. Let’s stop pretending that the Constitution actually matters.
If SSM enjoyed widespread support, it would not have taken the California Supreme Court to overturn the existing law, no need for Prop. 8 to fix it, and no need for a judge to overturn the will of the people once again.
When state constitutional amendments passed by a majority of the voters keep getting declared to fail rational basis, it really shows how little contact the academics that post here have with the people.
August 16, 2010, 5:55 pmAF says:
I note a Rasmussen poll ten days ago that reports 94% of those polled are opposed to a statement that the federal government should have no limits on what it can do.
So there’s a lot of support for the Bill of Rights.
August 16, 2010, 5:55 pmmark says:
I don’t think Korematsu fits neatly into a model where “the Constitution says A1″. There is nothing in the Constitution that provides specific affirmative support for it. I think it likely falls outside the executive power to begin with.
August 16, 2010, 5:57 pmClayton E. Cramer says:
You fail to distinguish between what makes good public policy and what the Constitution requires. The Constitution allowed imprisonment for debt, and state laws prohibiting non-Christians (sometimes, non-Protestants) from holding elective office. It wasn’t judges that made it go away.
August 16, 2010, 5:58 pmAnderson says:
If a federal judge had ruled that there was a constitutional right to polygamy, or marriage to ten year olds
Well yes, had the court ruled so as to make non-constitutional rights (what about cannibalism? you forgot cannibalism!) into rights, then his decision would be criticized.
Since he correctly ruled that gay marriage is a constitutional right, however, then there’s no hypocrisy.
August 16, 2010, 6:10 pmChris Travers says:
Necrobestiality in religious fertility rituals! You forgot necrobestiality in religious fertility rituals!
August 16, 2010, 6:18 pmfrankcross says:
Jason, I’d say paper money is a good example.
And you too easily assert “broad enough support to pass a constitutional amendment.” Consider the ERA. There was tremendously broad support for its basic principle of equality. But it couldn’t get passed. The courts were able to implement that broad support.
August 16, 2010, 6:19 pmDilan Esper says:
You fail to distinguish between what makes good public policy and what the Constitution requires.
OK, we have one person on the right who is apparently itching for a rehabilitation of Bradwell. Maybe you can write a book about it.
Seriously, Clayton, do you realize how patronizing your comment is? Don’t you think I know that the Constitution doesn’t require every good public policy and prohibit every bad one?
You act as if anyone who accepts that axiom must think that Craig v. Boren and Reed v. Reed were wrongly decided. Guess what? I don’t. Neither do a lot of lawyers, law professors, judges, and constitutional scholars. Because– and this is part of what Professor Kerr’s excellent post was getting at– there are many valid methodologies for interpreting the Constitution.
Indeed, I think Craig and Reed are fairly easy to defend unless one is a ridiculously doctrinaire originalist, either on textual grounds (the equal protection clause is written in broad enough and general enough language so as to fairly apply to gender discrimination), general principle-style originalist grounds (the equal protection clause was generally understood to prohibit invidious discrimination against disfavored and stereotyped groups, and this rationale applies to women), stare decisis grounds (obvious), or full blown “living constitution” grounds (because there has come to be a social consensus that gender discrimination is generally unacceptable). Except for the last, I don’t see how any of these methodologies could possibly lead to “the Constitution means whatever I say it does”.
August 16, 2010, 6:19 pmGuy says:
As my above comment may have indicated, I’m often annoyed by the tendency among some to treat the concepts of originalism and textualism as if they are interchangeable, the Equal Protection Clause and the Eleventh Amendment are two areas where the originalist and textualist interpretations are flatly incompatible.
August 16, 2010, 6:28 pmDilan Esper says:
Guy:
I think the reason for that is because political pundits and politicians are sloppier with terminology than law professors and theorists are.
So you will hear Generic Republican Politician (and I’ll caution everyone here, I am not bagging on conservatives, I could do the same thing to a Democrat; I’m just illustrating my point) say “I think judges ought to enforce the law as written, interpret the constitution based on the intentions of the framers rather than their own personal preferences, and not override the decisions of the democratically elected branches of government” even though those are three completely different things. This is also why nobody can agree as to what the all purpose term “judicial activism” means.
August 16, 2010, 7:11 pmleo marvin says:
Great post. One of those archetypes is a liar, and I think we all know which one.
August 16, 2010, 7:38 pmMark Field says:
I think there’s an equally good argument that the SDFs would see themselves as originalists. That is, they practice the common law style of judging which the Founders expected from the courts.
August 16, 2010, 7:39 pmleo marvin says:
True, but likewise living constitutionalists see themselves as non-textualist originalists. At some point, originalism loses all meaning. Not that that’s necessarily a bad thing.
August 16, 2010, 8:14 pmChris Travers says:
Here’s what I’m struggling with. It seems to me living constitutionism holds originalism as a portion of the larger set of rhetorical norms that makes up Constitutional law, so arguably what originalism is intended to do is not get rid of all of living constitutionism but rather to strip it down to the originalist elements.
As a guy who spends a lot of hobby time on textual studies generally, there is a certain appeal to originalism and to textual construction as theories of interpretation, but I can’t help coming back to the idea that no matter what course we take we end up at some point back at living constitutionism.
But this leads to a question I have which is, given that these rhetorical norms are unstable and changing over time, how can one really ground it? I know there are judicial principles that theoretically provide additional grounding but they are in conflict with eachother too.
This is a problem for originalism too, btw. It may well be that it is a problem for every theory.
And of course for SDF’s… Well the nice thing about precedents is there are so many to choose from….
So in all these cases, I think, one can argue that the frameworks are sufficiently flexible to lead to personal desires leading to decisions unless the judge is sufficiently restrained. This gets to Orin’s comment about Learned Hand in the other thread, and also to the reason why appeals are heard by panels rather than single judges.
August 16, 2010, 9:31 pmSebastian H says:
I think a lot of this has to do with prevailing norms. When the norm is that a judge has to ground his decisions deeply in the Constitutional text, we feel like the occasional human times he strays are acceptable and can be overlooked. As the norm to ground things in the text is eroded, (where for example you get Brennan and Marshall flatly inserting their personal opinions on capital punishment into every death penalty cert review for example) people begin to lose faith both in judges and in the Constitutional process as a whole. Which leads us to the point where we start talking seriously as if it just means whatever 5 justices choose for it to mean. But if you take the legal realist concept seriously (that it really is just whatever the judges say it is) there really isn’t a reason to bother with judges, we could just have the law be whatever legislatures say it is and dispense with the ‘constitution’.
So at some point you have to get to enforceable, or at least strong norms, that the public can understand. And that is where I think the current living constitutionalists fail deeply. They can’t articulate what is firmly out of bounds.
August 16, 2010, 9:54 pmMark Field says:
Well, I think most “living constitutionalists” are most of the time practicing common law judging using textualism and historical development to arrive at meaning.* In that theory, the original meaning is relevant but not controlling.
*I’m not using “textualism” as Scalia does, but in the literal sense of looking first at the language used and then at precedent.
August 16, 2010, 10:17 pmJason says:
I asked for examples of A1 that had four attributes (representing my understanding of “A1″ as specified in the original post):
1. The constitution (or an amendment thereto) says which
2. Was interpreted literally by the courts at one point in time and
3. Was not fixed by way of constitutional amendment and
4. Is regarded as not merely unacceptable, but Neanderthal today
Chris (and several others) obliged:
Which part of the constitutional provision do readers believe specifies Korematsu or Plessy?
This was really my point. For the original post to make sense, A1 can not merely be a constitutional provision (as the original post says it is). It has to be an interpretation of the constitution (rendered long after the relevant amendment went into effect) which has no particular claim (other than precedence) to being more correct than A2.
If the fourteenth amendment explicitly stated that separate but equal accommodations are not prohibited, I doubt very much that the Brown vs. the Board of Education would have been decided as it was.
Dred Scott is much closer to what I was looking for in my first criterion, but of course it fails the third.
August 16, 2010, 10:19 pmJohn says:
Anderson, the current position is B2, but tomorrow the position might be B3. So if today the “correct” decision is that gay marriage is a constitutional right, why should not polygamy or even cannibalism be constitutional rights tomorrow? Under a stricter constitutional framework you need to get “large” majorities to allow changes such as these. Either large enough that no one (or at least very few) questions the court’s decisions or an amendment is passed. Under the SDF method such changes would need to be done slowly and incrementally, but using the Living Constitution framework there seems to be no limit to what the court could decide to do tomorrow.
August 16, 2010, 10:40 pmChris Travers says:
“No limit” is a bit of a misnomer. The argument for a living constitutionalist would come down to rhetorical norms and where these immediately lead. I think this ends up requiring a general consensus on the issue to work correctly. Look at how decisive Roe v. Wade still is and ask if it was really a good idea for the court to be acting as lawspeaker there. A more minimalist decision might have allowed more time and effort to build a national consensus in the dialog as to what these issues mean. Instead that dialog continues to go on but use a point in the past (Roe) as the polarizing reference point.
I think that living constitutionism is perfectly compatible with judical minimalism, and in fact judicial minimalism provides a great way of grounding a decision in a narrow analysis which avoids broad pronouncements. It’s still living constitutionism, but at least it’s grounded.
August 17, 2010, 1:01 amJohn says:
I agree there are always limits, bounds drawn by what is politically possible if not limits imposed by the constitutional theory itself. Yet is it not the amount of change and how that change is accomplished that is true point of contention between these constitutional theories? Under an originalism, textualism, stare decisis, all of them are much more constrained (focused upon even) by the past then living constitutionalism. LC seems to imply that current/future needs are what is important to focus upon, with limited if any consideration of how we arrived at this point.
This has both positive and negative results. Sometimes, looking back society is glad the court broke sharply with the past (see the aforementioned Brown vs Board of Education, etc.). Other times the Court broken sharply with the past to our later dismay (Dredd Scott among others).
August 17, 2010, 2:22 amDavid Welker says:
Orin,
Very nice post. A bit simplified perhaps, but it really does seem to capture the essence of a lot of constitutional debates.
August 17, 2010, 5:52 amD.R.M. says:
Living Constitutionalism provides no defense against reverting to A1 in fifty years except for the provably false belief that societal/legal/elite opinion evolution will always be in the direction the LCs prefer. (Proof of falsehood? Attitudes towards gun control in 1975 vs. 2010.) Indeed, even a constitutional amendment to entrench A2 is no help, since Living Constitutionalism works just as effectively to interpret A2 to mean A1 as vice-versa.
“Stare Decis” worshipers run into the problem that their method has no means to handle new amendments, nor any guidance to judges in interpreting them. You can’t reverse the Court with an amendment because the amendment doesn’t have a meaning until the Court rules on it, and the Court, having no stare decis to guide them on the meaning of the amendment, can declare it to mean whatever they like. Which is then entrenched stare decis.
Either we actually have a written Constitution or we don’t. If we have one, what is actually written trumps all other considerations. Where the text admits of several interpretations, original public meaning and stare decis are then legitimate tools in applying the text. If the text produces bad results, you can amend the text and follow the new text.
And yes, that means that if A1 is what the text says, or is admissible under the text and is what is backed by OPM and stare decis, is the law until you amend the thing. Pass an amendment already.
August 17, 2010, 6:31 amBrett Bellmore says:
Sounds like a fair description of the aim of Balkin style ‘originalism’: To strip originalism of all meaning.
This would be due to the assumption that the Constitution wasn’t written by illiterates, that the people who wrote it were, generally, capable of drafting a text which actually meant what they’d intended it to mean, and would be understood by other people to mean that.
So original intent, original meaning, and textualism should all converge, in most cases.
Anyway, I think the post is a bit unfair to originalists, there are plenty who, when confronted with A1, are perfectly willing to say that it means A1.
They just don’t get nominated to the bench…
August 17, 2010, 6:37 amsilverpie says:
Well, discontinuing the line would be impeding interstate commerce… ;)
August 17, 2010, 8:06 amPubliusFL says:
Does Dred Scott satisfy the first and the second? I think the dissents in that case make much better arguments from an original public meaning perspective.
August 17, 2010, 9:11 amAF says:
This was really my point. For the original post to make sense, A1 can not merely be a constitutional provision (as the original post says it is). It has to be an interpretation of the constitution (rendered long after the relevant amendment went into effect) which has no particular claim (other than precedence) to being more correct than A2.
What do you mean by “correct”? Certainly there are examples of A1 that are more consistent with the original intent, understanding, and public meaning of a constitutional provision than later interpretations. Plessy is one such example. Whether the later interpretations are therefore less “correct” is the question that is being debated.
If the fourteenth amendment explicitly stated that separate but equal accommodations are not prohibited, I doubt very much that the Brown vs. the Board of Education would have been decided as it was.
Perhaps, but there is more or less a scholarly consensus that the Equal Protection Clause was understood in the 1860s to be compatible with segregation. So while Brown is perfectly consistent with the language of the clause, it is not consistent with the original understanding (or public meaning).
August 17, 2010, 10:28 amfwb says:
Who holds the right to alter a contract between two individuals or among a group of people?
Does the subordinate have the authority to define the superior?
Brown presupposes positive EP rather than that which the clause textually supports. EP may be positive, negative or nonexistent and still meet the EP requirements.
August 17, 2010, 12:18 pmChris Travers says:
FIFY.
In fact, one key area that Andrew Koppelman points to is the gun rights movement and how that shaped Heller. His point is that social movements are a part of the process, and that this is a feature, not a bug.
If there is a defence, it would be that there are still lessons to be learned from the past, and that both history lessons and stare decisis are rhetorical norms within this framework, so while it provides no perfect assurances of not reverting to A1, the likelihood is somewhat reduced.
One can always extend precedents to cover new arguments and reason by analogy.
August 17, 2010, 12:26 pmTHESMOPHORON says:
I think you’ll find that Dred Scott v. Sanford was in deed fixed by Constitutional amendment. Three of them, in fact.
August 17, 2010, 12:37 pmChris Travers says:
I dunno. Of these I think that only textualism is arguably constrained, and then even that may be an illusion. How many differing theories can one have about how to interpret indexicals in the document? I think there is a misnomer that texts are always sufficiently clear to be read only one correct way. Jacques Derrida’s theories are worth reading here…..
Otherwise you run into:
1) Look how many framers we can choose from to determine what this means!
2) Look how many precedents we can choose from!
3) Look how many textual traces we can choose from!
vs
4) Look how many rhetorical norms we can choose from!
Interestingly I think that these are all equivalent in terms of flexibility. The fact is that the first three seem more restrained because there is more homogeneity currently between the exponents of the theories. As they open up and become mainstream, folks will end up reading Madison and Jefferson in quite divergent ways, or making more divergent arguments over the interpretation of every comma, article, capitalization, or pronoun in the Constitution. No matter what, I think one ends up back where one started. I think all four end up being exactly equivalent if followed widely.
August 17, 2010, 12:38 pmChris Travers says:
See my discussion above.
The basic issue with Dred Scott and this framework is that the court reached a patently absurd result regarding the citizenship question, namely that free blacks could not be eligible for citizenship and that no government authority (not federal, not state) had the right to change this simply because the Framers didn’t intend for blacks to be citizens. This was indeed fixed by a Constitutional amendment (14). The idea of denying citizenship solely on the basis of race (meaning that free blacks BORN IN THE US were not citizens under Dred Scott) rested upon social norms at the time of the founding, not upon the tradition of citizenship law at that time.
Why I include this here even though it was “fixed” by a Constitutional Amendment is that the passage in that amendment was intended to clarify the pre-existing tradition, rather than to actually change the structure. This wasn’t like the thirteenth amendment which constituted a fundamental change to the structure and nature of the Constitution. This was instead fixed by a Constitutional Amendment that was intended to, if you will, tell the court the way it’s always been. In fact the Framers of the amendment said that it was just codifying current practice, so I am not even sure that this was formally fixed in that amendment.
August 17, 2010, 12:58 pmGuy says:
Which is precisely why I argue that “Originalists” are getting the intended meaning wrong by conflating it with the original expected application.
August 17, 2010, 1:46 pmDilan Esper says:
This would be due to the assumption that the Constitution wasn’t written by illiterates, that the people who wrote it were, generally, capable of drafting a text which actually meant what they’d intended it to mean, and would be understood by other people to mean that. So original intent, original meaning, and textualism should all converge, in most cases.
Really? First of all, with original intent, you have all the problems Scalia identifies with legislative history: different legislators have different intents, people lard up the record with self-serving statements to try and obtain an “interpretation” that they didn’t have the votes to get put into the statute, it gives inordinate power to whoever puts stuff into the record rather than giving each representative an equal vote, etc.
With original meaning, the problem is more subtle, but can be seen by looking at a non-legal text, the Declaration of Independence. It says that all men are created equal. Now, did the framers who wrote that understand that blacks were created equal? Did the public understand that to be its meeaning? I doubt it. But that’s what it says in black and white (or black and sepia). So if you are a textualist interpreting the Declaration, it seems to me you have to interpret it as meaning that black people are equal to whites. But if you are an originalist, you have to intrepret it in the opposite way.
This problem comes up in constitutional law all the time. For instance, read Bork’s very restrictive view of the First Amendment that he set forth in the early 1970′s in his “neutral principles” article. It seems to me that he is quite right as a matter of originalism that the First Amendment was thought to be very narrow– indeed, at least some of its authors understood it to be consistent with the Alien and Sedition Acts. All of them saw it to be consistent with broad libel laws, and broad laws against even mild, text-based “obscenity” that offended policymakers in local communities.
But what they wrote– Congress shall make no law abridging the freedom of speech– is much broader than what they understood. Once again, there is a conflict between textualism and originalism.
Textualism says what they actually wrote controls. Originalism says what they understood controls, even if it is at odds with what they wrote.
August 17, 2010, 2:19 pmChris Travers says:
Question: Other than the Alien and Sedition Acts, were there any federal libel laws shortly after the founding? If not could that be simply because prior to the 14th Amendment, it wasn’t applicable to the states?
August 17, 2010, 3:30 pmleo marvin says:
I meant at a higher level of abstraction, but anyway I was really just torturing the example to make it fit the general point I wanted to make. In other words, I agree your description is a lot more accurate.
August 17, 2010, 3:49 pmMark Field says:
Libel was a common law tort, so no statute was necessary.
August 17, 2010, 4:01 pmDilan Esper says:
Other than the Alien and Sedition Acts, were there any federal libel laws shortly after the founding? If not could that be simply because prior to the 14th Amendment, it wasn’t applicable to the states?
In addition to what Mark said, your question is also of the form of “other than that Mrs. Lincoln, how was the play?”. Many of the same people who enacted the First Amendment voted in Congress to bar false statements about government officials. They were clearly appealing to the longstanding tradition that libels and slanders are unprotected expression.
I don’t think you would have found that many people in 1791 who would have endorsed the principle of New York Times v. Sullivan as a construction of the First Amendment.
August 17, 2010, 5:49 pmChris Travers says:
Clearly not. Of course both Madison and Jefferson were in that small minority, of course.
But the reason I ask is this:
The First Amendment is worded as an absolute prohibition. Most of the exceptions to natural right to free expression in the Founding Era were not federal matters. So it wouldn’t affect the ability of a state to enact blasphemy laws, to criminalize sedition, and the like. There were a few exceptions in terms of thinkers (Madison, in particular, who was behind the Virginia State Constitution’s free speech guarantees, which of course, preceded the Alien and Sedition Acts and were, if anything, broader than the First Amendment in scope).
In other words, even as an absolute prohibition, the First Amendment itself wouldn’t have precluded laws regulating or criminalizing libel, slander, blasphemy, political dialog, or any other area. These were outside the enumerated powers of the federal government and consequently it’s anyone’s guess whether Jefferson’s enumerated powers argument, Madison’s arguments, or something else would have prevailed under Marshall’s Supreme Court. The case was ultimately not heard because the acts were repealed before the issues reached the Supreme Court.
However, when we look at post-14th-Amendment jurisprudence (where First Amendment jurisprudence really gets going), I think one gets a sense which is closer to what Bork may be defending, namely that the proper test of the 1st Amendment was that of the “bad tendencies” test of English common law.
I’d argue however, that if we are looking for various Constitutional Ontologies, the development of First Amendment jurisprudence clearly supports Living Constitutionalism. What we see there is a trend of government excesses which forced the courts to develop newer, stricter common law tests to show what was protected by that amendment. These lessons of history end up feeding into stricter tests, restraining the government from some types of excesses. Consequently the argument would be that the Constitution is not only the document but the sum of the lessons from the history of trying to interpret it.
Of course, the opposite case could be made for the Commerce Clause. But maybe we will see that continue to be scaled back little by little as people reject the idea of the Federal government co-opting this power and turning it into a general police power. At any rate, it seems likely to me that Living Constitutionalism is a more effective Constitutional Oncology (i.e. treatment for cancerous federal governmentism) than simply following stare decisis.
August 17, 2010, 6:23 pmOrenWithAnE says:
Obviously the contract itself must specify some competent authority to arbitrate disputes between those people as to its continued application.
[ Well, that and common law of contracts provides certain defaults, torts and impermissible terms and whatnot ...]
August 18, 2010, 11:51 am