Archive | Originalism and its Critics

Printz, Commandeering, and the Federalist

Today was the second day of Originalism and its Critics, which I’m co-teaching with Eric Posner. We read Printz, Jud Campbell’s article on commandeering, and an article by John Manning on the use of the Federalist Papers. Two general thoughts on those readings:

1. On Printz and commandeering, I have already said that I think Campbell’s article is a tour de force. By showing that the context of commandeering is the opposite of what many have assumed, he shows that there is serious doubt that the majority opinion in Printz is correct. To be sure, this isn’t a definitive point; one could still construct an originalist argument under which commandeering is constitutionally suspect, but it will be much more strained.

That leaves the question of whether we should be heartened or troubled to learn that the Supreme Court can make historical mistakes. Obviously we would prefer that the Court not make mistakes, though I am not sure that the optimal error rate is zero.

On balance, I would vote for heartened. It suggests that there is sometimes something actually falsifiable going on, and therefore that originalism is not infinitely malleable. That said, I doubt that contemplation of whether to overrule a precedent happens in a principled way — by originalists or non-originalists. That, I find more troubling.

2. It is also interesting to think about why the Federalist is such a totemic item of legal citation and whether it should be. Of course the standard answer is that it is important not to exaggerate the importance or neutrality of the Federalist and that academics ought to look at all relevant historical materials, and not privilege the Federalist simply because it is convenient. (I should also flag Seth Barrett Tillman’s clever essay pointing out the obvious errors in [...]

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Farewell, Thanks, and the Future of Originalism

We very much enjoyed our week of blogging at the Conspiracy and once again want to thank Eugene, the other Conspirators, and the commenters.  Many comments raised important and interesting points that we were not able to discuss in 5 posts.  Those interested will find our views elaborated at much greater length in the book.

We think of our book as part of an originalist movement that has been growing in the last decades.  While we favor our version of originalism, we also welcome the views of other originalists of different perspectives, including those of the originalist Conspirators.

It has been the development of these various positions and their cumulative effect that has made possible the tremendous growth in originalism – a development that we think of as the Originalist Renaissance.  Hopefully, this movement will only continue to grow. [...]

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Originalism: We the People of the Past, the Present, and the Future

Frequently, it is argued that the problem with originalism is that it forces us to be governed by an old Constitution that is out of date. We think that this claim gets it backwards: nonoriginalism impedes the Constitution from being improved through the amendment process.

It has sometimes been thought that the amendment process is just too difficult to be workable, but the historical record belies this.  During the period when originalism was the dominant mode of interpretation, hugely important amendments were passed; the Sixteenth Amendment permitting the income tax, the Seventeenth Amendment permitting the direction election of Senators, the Nineteenth Amendment guaranteeing women the right to vote.   Many of these amendments were passed by people who might have been thought to have vested interests against them.  For instance, state legislatures voted for an amendment that gave up their power to choose senators. Men voted for an amendment that diluted their vote.

But as non-originalism became more powerful, the amendment process fell into disuse for the enactment of profound social change.  This is not surprising.  If judges decide how to update the Constitution, that will preempt the constitutional amendment process from making the change.  If judges do not follow the original meaning of the Constitution, citizens will be loathe to give them another blank check.  These were the main reasons why the Equal Rights Amendment was defeated.  The Supreme Court had delivered a substantial measure of equal rights already and through a wide variety of nonoriginalist opinions had engendered distrust of its future decisionmaking.

In short, it is originalism that protects the amendment process.  If judges can change the Constitution, most people will put their energy into trying to get the right judge appointed and creating a culture where it is thought proper for judges not to be constrained by [...]

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Originalism and An Intermediate Theory of Precedent

Precedent poses a problem for originalism, because much of Supreme Court jurisprudence is nonoriginalist.  Originalists have had two ways of treating such precedent.  The first is to dismiss nonoriginalist precedent as inconsistent with the Constitution. Under this view, the Constitution must be interpreted according to its original meaning because nothing in the document permits precedent to trump the original meaning. While precedent might be consulted for any evidence it provides about the original meaning, interpreters should not give any independent weight to precedent.

The problem with this view is that, while it appears to retain the purity of originalism, it renders it a wholly impractical jurisprudence.  Some core contemporary practices of government are founded on nonoriginalist decisions.  To overrule these decisions would plunge the nation into chaos.  Moreover, no Supreme Court has ever suggested that precedents should be given no weight in its decision making.

Alternatively, some originalists advocate following nonoriginalist precedent in certain circumstances.  Antonin Scalia, for instance, has sometimes followed constitutional precedent that he appears to believe is nonoriginalist. The difficulty with this approach is that, without further explanation, it appears unprincipled and ad hoc.  Moreover, if some precedent can be reconciled with originalism, what are the rules that integrate originalism and precedent and how do they flow from originalism?

Our theory shows how originalism can be reconciled with precedent in a principled and beneficial way. The claim that originalism is incompatible with precedent is wrong, because the Constitution’s original meaning itself contemplates precedent.  The Constitution largely treats precedent as a matter of common law that is revisable by congressional statute.  Our book collects substantial evidence that the Framers assumed that precedent would apply in the constitutional context as well as in other legal contexts.  Because precedent is a common law matter, the courts in the first instance [...]

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Heller As an Advertisement for Originalist Methodology

Eric Posner has posted a few comments on our first class on originalism, including his thoughts on Heller:

It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the Court does not resolve the ambiguity one way or the other. A general preference for allowing voters to make up their own mind, the absence of any allegation or evidence of political failure, a relevant precedent if not a strong one, and a very long history of gun control legislation across the country all point to upholding the statute. Both Scalia’s and Stevens’ opinions are horrible messes. Scalia’s parsing of the text is wooden and ludicrous. Both of them select the evidence they like and interpret it tendentiously. Neither show any feeling for history. The opinions are tedious, pompous anti-models of judicial writing, no advertisement for the method of originalism.

It will probably be no surprise to readers that I have a different view. It is true that the opinions in Heller are very long, and go into much more historical detail than Supreme Court opinions usually do. The length and density of the opinions is unfortunate in one sense. It makes the historical questions seem much harder, or much more intractable, than they really are if you sit down and go through the materials carefully. On the other hand, shorter more engimatic opinions have costs too, because then the Court is accused of going too fast, not explaining itself, etc.

(I also wish that the Heller opinions had been shorter because then it might have been feasible to assign Larry Solum’s excellent article on Heller and interpretive methodology.)

In any event, it seems to [...]

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Interpreting the Constitution Through Original Methods Originalism

Originalism holds that the Constitution should be interpreted in accordance with its original meaning.  But how does one determine the original meaning?  There have been two leading theories about how to do this: original intent and original public meaning.

We propose a third theory of how to determine the original meaning (or, put differently, a gloss on the other two theories): original methods originalism.  We believe the more accurate way to determine the original meaning of the Constitution is to employ the interpretive rules that the Framers’ generation would have deemed applicable to the Constitution.

When people speak or write, they rely on a variety of background rules to communicate.  The language they are using; the meaning of the words; the grammatical rules, etc.  If they believed those background rules were different, they would express their meaning differently.  The same point holds for the interpretive rules.  People who write a legal text assume that it will be interpreted in accord with legal interpretive rules.  If the rules were different, they would have expressed their meaning differently.  Thus, the rules that people at the time would have deemed applicable to the document must be followed to determine its meaning.

This approach has important implications for both the original intent and original public meaning approaches.  If one starts with an original intent approach, it leads one immediately to an inquiry into the original interpretive rules.  Just as one assumes that a group of enactors expressed their ideas according to ordinary meanings and grammatical rules, so one assumes that they did so according to the applicable interpretive rules.

If one starts with an original public meaning approach, it also leads towards the original interpretive rules.  The most common approach to determining the original public meaning is to ask how a reasonable and informed [...]

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Our Normative Argument For Originalism

There are a number of ways of attempting to justify following the Constitution’s original meaning.  Some people believe that originalism constrains judges.  Others see the Constitution as the choice of the people under a popular sovereignty view.  We seek to justify following both the Constitution and the original meaning based on the normative desirability of the Constitution.  If the Constitution is a good one, then good consequences will result from following it.

But we do not base our normative argument simply on the assertion that the Constitution is a good one.  Instead, we believe that the goodness of the Constitution in a pluralistic society can also be seen though the method for enacting it.

We can summarize our argument in three simple propositions.  First, stringent supemajority rules provide the best way to make a national constitution.  Second, the United States Constitution was enacted mainly under such rules.  Third, it is the original meaning that was enacted under those supermajority rules and therefore it is that meaning that should be followed today.

1.  Let us expand on each of these points. First, relatively stringent supermajority rules will likely produce a good constitution and there is no other superior method.  As with a criminal trial, there are strong arguments for accepting its results.

We can see the virtues of a supermajoritarian constitutional enactment process by contrasting it with majority rule.  While something close to majority rule is generally the best approach to ordinary legislation, permitting a majority to entrench constitutional norms would be problematic.

First, because entrenched norms cannot easily be eliminated, controversial entrenchments can be extremely divisive and partisan.  Supermajority rules, in contrast, screen norms for substantial consensus and bipartisan support.  The resulting consensus creates legitimacy and allegiance as citizens come to regard the Constitution as part of their common bond. [...]

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The Project of the Book

We are very happy to be blogging at the Volokh Conspiracy about our new book, Originalism and the Good Constitution, which has just been published by Harvard University Press.  We want to thank both Eugene and the other Conspirators for the opportunity to offer our views on originalism.

Our book presents a variety of new, inter-related ideas about originalism.  Over the next week, we plan to develop them, but for today we thought it useful just to give readers an overview of these various ideas.  First, the book provides a new normative argument for following the original meaning of the Constitution – one that roots its argument in a welfare consequentialist (utilitarian) theory and that focuses on the supermajoritarian method for enacting and amending the Constitution.  While this justification relies on value judgments, these judgments are not narrow ones, but ones that accommodate people of differing normative perspectives.

Second, the book presents a new approach to determining the original meaning of the Constitution – original methods originalism.  This approach asks interpreters to read the Constitution using the interpretive methods that the Framers’ generation would have applied.  We argue that this approach provides a more accurate method for determining the original meaning of the document.

Third, the book provides a new resolution of the so called dead hand problem, showing that each generation has the same formal opportunity to write its values into the Constitution.  While the first generation probably had more input into the overall Constitution as a practical matter, later generations derive more than compensating benefits from inheriting a desirable constitution.

Fourth, the book defends the strict process for amending the Constitution.  While many people claim that the amendment process is too strict, the book argues that the amendment process has many significant virtues and that the real [...]

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My New Class, Originalism and its Critics

My new colleague Eric Posner has a post on his new blog about a class that we will be teaching together this quarter, Originalism and its Critics:

I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics. If you are interested, here is our syllabus (Originalism and Its Critics syllabus dec. 12). I will post reactions to the articles as I read them, and perhaps Will will post his own reactions at the Volokh Conspiracy where he blogs.

On Twitter, Steven Duffield asks why nothing by Robert Bork was included. The short answer is that quarters are short, and reading assignments need to be manageable.

The longer answer probably reflects my own bias about what is important for understanding originalist scholarship and jurisprudence today. Bork was of course very important at the time that he wrote, but I tend to think that most of his important insights have filtered into the next generation of scholarship (some of which is written by his former students). Moreover, I think some modern criticisms of originalism tend to misfire — at least to those who haven’t made up their minds already — because they are taking aim at the earlier generation of scholarship (like Bork’s) rather than the next generation, which has modified and improved on it.

In any event, I’m very excited about the class! [...]

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