H2H: Balkin's Response to David Strauss on Originalism -- First Round

(cross-posted at Balkinization)

Like David Strauss, I’m delighted to be able to participate in this exchange on liberalism and originalism.

In his first post, David makes two criticisms of originalism. The first is that it is empty; it has no real content. The second is that it is illiberal; it has bad content. (Note that these two claims are at least potentially in tension with each other.)

David’s first point is that originalism doesn’t determine hard cases by itself. We do not disagree. All the other modalities are usually necessary to resolve these cases. Much of constitutional law involves what I would call (following Keith Whittington) constitutional construction-- fleshing out the constitutional text and principles through implementing rules and institutions. That construction is not limited to courts; the political branches also implement constitutional values all the time. And their implementations have path dependent effects on how we construe the Constitution later on. There is not one single way the Constitution-in-practice had to end up. Much depends on what each succeeding generation does with what they are bequeathed, what institutions they create, what precedents they set, and so on.

I think David is running together the question of original meaning with the question of how best to implement the Constitution. At least, that is what I think is going on with his discussion of levels of generality. From the standpoint of the meaning of the equal protection clause, the proper level of generality is the level that we find in the text itself. The text says “equal protection of the laws.” That is the proper level of generality. David asks why the proper level of generality for understanding the clause is not “racial equality” or “equality with respect to common law rights.” The reason is that the text does not say “racial equality” or “equality with respect to common law rights.” There are important historical reasons why it did not do so.

David’s concern about the proper level of generality makes sense only if you think that the clause must somehow be confined or limited to original expected applications. Then you have to engage in debates about how to characterize those expectations, broadly or narrowly. But I reject that view. Asking about levels of generality also makes sense if you believe that determining the original meaning of the clause will do most of the work of implementing it. But I also reject that view.

David wonders why I say that the principles underlying the Fourteenth Amendment ban class and caste legislation. I say this because these are principles at the same level of generality as the text and the history strongly suggests that these were key principles underlying the Fourteenth Amendment. These ideas come straight out of Jacksonian and abolitionist ideology. When Senator Jacob Howard, representing the Committee of Fifteen, introduces the Fourteenth Amendment in the Senate in May of 1866 he explains each clause and its function. When he gets to the Equal Protection and Due Process Clauses he says that they “abolish[] all class legislation in the States and do[] away with the injustice of subjecting one caste of persons to a code not applicable to another.”

How would we implement the equal protection clause? The answer is pretty much what you would expect. We would come up with doctrines that tried to articulate when laws were likely to unfairly single out groups for special burdens or benefits, or produce or maintain unjust social subordination. Our modern scrutiny doctrines attempt to do this. (So did the old police power jurisprudence of the Lochner era.). These doctrines don’t always do it well, but that is their point.

David and I agree that the class and caste legislation principles, by themselves, do not determine the scope of their own extension. But, not to put too fine a point on it, neither does the language of the Equal Protection Clause itself. Everything he says about these two principles could also be said about the words “equal protection of the laws.” Rather, we have to implement text and principles in doctrines, constructions and institutions. We have to build methods of applying these principles in practice. To do this, we use the various modalities of legal argument that are familiar to lawyers. When lawyers develop doctrine, they try to develop conceptual tools to implement text and principle and concretize them. Think of doctrines as heuristics. Our contemporary scrutiny rules are implementations of the Fourteenth Amendment’s text and principles, which sometimes work fairly well to promote these principles and sometimes do not work very well at all.

When I say that laws banning abortion violate the class legislation and caste legislation principle, that means that I think this is the best implementation of those principles in today’s world. In my article Abortion and Original Meaning I give fairly elaborate reasons for why that is so. My arguments don’t always track existing doctrine, but in implementing these principles in concrete settings I am trying to do what existing doctrine does. The key point, once again, is that doctrine isn’t the same thing as constitutional meaning. It implements meaning.

Thus, David’s claim that originalism by itself doesn’t resolve lots of controversies is not really much of an objection from my perspective. In fact, if David and I both wrote accounts of various constitutional questions involving the Constitution’s vague and abstract clauses, we would probably rely on similar materials, and the results might often look quite similar. The major difference perhaps, is that I would start by talking a bit about text and underlying principles before launching into the other modalities and explaining how they helped implement text and principle.

In fact, I think that starting with text and principle can be very enlightening in some cases. One recent example is Romer v. Evans. If you start with our standard doctrinal models, you have to twist yourself in knots to explain the result in Romer. But if you start with the assumption that these doctrines are designed to implement the Fourteenth Amendment’s ban on class and caste legislation, Romer makes much more sense. In fact, I would argue that the law at issue in Romer is a paradigmatic example (in our day, at least) of what the Reconstruction Republicans were getting at when they spoke of class legislation. Romer is a case that shows the limits of our current models of doctrine. But doctrine isn’t written in the sky. It’s a heuristic device for implementing and applying constitutional values. Doctrinal structures that implement the Fourteenth Amendment have been different before, and they will be different again.

So far, it does not look as if David and I disagree very much. What is the nature of our disagreement, then? I think it is this: David sees text and principles as not particularly helpful or important to constitutional law; for him all of the work (or most, anyway) is done through the common law process of reasoned argument and doctrinal elaboration. By contrast, I regard the purpose of common law elaboration as in the service of fleshing out and implementing text and principles. Why does this difference matter? I can think of three reasons.

First, if doctrine and common law development serve text and principle, and not the other way around, then text and principle are always available to critique present-day doctrines-- and encrustations of doctrine-- that are no longer reasonable implementations of text and principle and no longer serve their purpose. This is especially important for social and political movements, which are the key drivers of changes in constitutional thought. These movements press for change by calling on the Constitution’s text and principles as they understand them. Sometimes their arguments are lawyerly and doctrinal, but often times they are not. Thus, the centrality of text and principle to constitutional interpretation is important if you think that much constitutional interpretation goes on (and even should go on) outside of the courts that create and depend on the elaboration of systems of doctrine. In the long run, changes in doctrine respond to changes in societal understandings of constitutional values-- and not the other way around.

Second, David thinks that talk of text and principles obscures constitutional argument. Quite the contrary, I think it immensely clarifies it. It shows that we are always doing is trying to implement and build on a framework, and it is a framework we are always permitted to return to, restore and redeem if we think that years of doctrinal glosses have become unwieldy, overly formalistic, or have otherwise taken us in the wrong direction. This presents a very different picture from a system of common law development that David favors, because sometimes it is difficult to explain why we can reject some precedents we don’t like (Bowers) if we want to insist that others have to stay in place (Roe).

This is a particular problem for liberals today: The present generation of living constitutionalists have found themselves on the defensive against conservative social movement energies. Like most social movements before them, these conservative mobilizations have called for a return to the Constitution’s text and to the principles of the founding generation, even if their notions of what that entails are disputable. Faced with incessant demands for constitutional revolution, living constitutionalists have become today’s “conservatives”: they have resorted to arguing for preserving the status quo, and for respecting older precedents created in politically more liberal times. But earlier social and political movements helped produce the doctrinal changes they now defend; those movements would not have succeeded if courts had applied the same concept of precedent that liberals insist on today. Arguments for respecting precedent make the most sense when they are directed at persons who do not share your constitutional views, but in that case they are a modus vivendi, not an independent criterion of constitutional fidelity. The best argument for decisions living constitutionalists admire is not that they are settled precedents; it is that they are faithful implementations of the Constitution's textual commitments and underlying principles.

Third, I think that David’s dismissal of original meaning originalism as mere rhetoric proves too much. I don’t think he can give a good account of why the "hardwired" rules in the Constitution are binding on us as law today. The common law method by itself can’t explain the binding nature of the "hardwired" features of the Constitution– the fact that there are two Houses of Congress, and so on. My version of originalism can: it argues that the Constitution contains rules, standards, and principles. All of them are binding on us in the present; however, the latter two, because they are standards and principles, require fleshing out and implementation through doctrine, institutions, and statecraft.

In fact, my sense is that most progressives already are original meaning originalists with respect to the "hardwired" Constitution. They don’t assume that doctrinal elaboration or common law reasoning can increase the number of houses of Congress or the length of the President’s term. For most progressives, living constitutionalism is primarily focused on the vague and abstract clauses of the Constitution, like those in the Bill of Rights and the Fourteenth Amendment; they want to make sure that these clauses are not limited to the original expected application. I think that my version of originalism– rather than a common law theory like David's– better explains why this attitude makes sense.

David’s second major concern is that originalism leads to inappropriate hero worship of founding generations, and it imposes the values of 18th and 19th century dead white men on the very diverse and vibrant society in which we live today. This is no small matter. The Constitution’s legitimacy comes from our present ability to see it as responsive to our needs for governance, for justice, and for the protection of our rights. Why should “people who do not feel any affinity to American traditions” have the constitutional values of an alien past forced on them? There is no special reason, David insists, why “we owe it to the earlier generations to maintain some kind of continuity with them.”

For my part, I don’t understand why these concerns don’t also arise in a common law system of constitutional development of the sort that David favors, one that also relies on reasoned elaboration of existing traditions and precedents. Won’t that sort of model be equally alienating to persons “who do not feel affinity to American traditions?” And don’t common law conceptions of reasoned development also involve continuity with previous generations? I think that David may be worried that originalism too readily binds us to the concrete expectations of people living in “the late-18th or mid-19th century”– like their views about “gender roles.” But certainly precedents of the past (and even the recent past) are also inflected with the attitudes and values of the past. Moreover, this is a strange criticism to level at my version of originalism, because, as David himself notes, I don’t believe that originalism commits us to the original expected application of the adopters.

There is a deeper question at stake, however, that I think David is aiming at. The question is whether legitimacy depends merely on our present day satisfaction with the Constitution or whether it requires that we imagine ourselves as having some continuity with earlier generations; whether legitimacy requires Americans to imagine ourselves as part of the American people, existing over time, and engaged in a common constitutional project. David’s remarks (at least here) suggest no. I say yes.

In my second article, Original Meaning and Constitutional Redemption, I argue that the legitimacy of the Constitution depends on the public’s attachment to it. Attachment is not the same thing as consent. You consent to something you have a choice in; you become attached to something that you live in and feel you are a part of. The Constitution is legitimate if people from their different perspectives can reasonably believe that, understood in its best light, it is worthy of their respect. (Frank Michelman has developed this point in his work). That means either that they either believe that it currently adequately protects their rights and respects their values or that they have faith that, in time, it will come to do so.

That means, among other things, that the legitimacy of the Constitution depends on our belief in its redeem-ability, and this requires us to imagine the Constitution as a project that extends over time, which in turn requires that we see it as a joint project of many generations, a project that extends backward into the past and forward into the future. In addition, I argue that for the Constitution to be legitimate, it must not only function as what I call “basic law” and “higher law,” it must also be “our law.” The Constitution works as “our law” when we view it as our achievement and the product of our collective efforts as a people, which simultaneously involves a collective identification with those who came before us and with those who will come after us. I don’t think this is the quite the same thing as hero worship. It does, however, require some degree of attachment to and pride in the constitutional project as a whole and a faith in its future redemption.

As you may have guessed by now, this is not your grandfather’s originalism. For one thing, it is not bound by original expected applications; for another, it carries with it a different conception of legitimacy. I’ll be interested in what David has to say about the question of legitimacy in his preferred method of constitutional interpretation in our next go-round.                     

Comments

[curtisstrong]

Balkin,

Any reason why the court couldn't decide that a caste is being created between the rich and influential (doctors, lawyers, professors, businessmen...etc.) vs. blue collar workers and the like?

What distinguishes the different "castes" as far as social/economic opportunity goes from the caste system that you seem to think applies to abortion?

For all of your explanations, Strauss still seems to have an edge here, and that is that the generality of the ideas behind the constitution is still open to great variance, assuming that you can come up with some kind of general basis at sometime during the constitutional creation era and/or the text of the constitution itself.

Is there any stability here, especially in light of Scalia's argument that the constitution is a legal, and not an ad-hoc document?

It seems to me that creative people could do just what you've done here, and tie A LOT of potentially strange meanings to the text of the constitution and/or the philosophies behind the text. This is not exactly what one would expect from an "originalist."

And rightly so, I think.

[bcowan]

A great deal of intellectual firepower is being flashed around in the "originalism" discourse.

The term itself emerged from a partisan conservative effort to constrict the permissible scope of what might count as a valid constitutional proposition of the form "X has/is a right that is protected by the Constitution."

The feeling behind that effort is that "too many" types of persons and interests have been appearing lately in the role of X (supra). That unsympathetic sort of feeling is a far more important component in the originalist doctrine than any of the arguments made in its behalf.

It is also the most serious reason to debunk "originalism" as the bad faith argument which it is. Whether that debunking be accomplished through the kind of "mirroring" technique suggested by Balkin or by the more stolid efforts promoted by Strauss to expose its doctrinal weaknesses and moral deficits is important only insofar as something happens to destroy its current apparent respectability.

As to the "original meanings," more than one person entertained thoughts about the relevant phrases in the consitutional texts, myriads of thoughts, within seconds of their first enunciation, including thoughts about the intentionally ambiguous provisions. All of these meanings are with us still and all are more or less relevant to what we do in forging the next round of propositions. Our next round will only be added to the many antecedent propositions - nobaody can annul even one of them.

We average persons probably understand enough about the general features of human life (being humans ourselves) to give a pretty good account of how people understood what was meant by the squiggles on the piece of paper, including the artful evasions that were part of the effort.

But for all that, we are different from them in the way that makes all the difference: we have had experiences that none of the originals could have had and that means that even if we do understand what they meant, our understanding is being done with intellects that have, among other things, made a phone call, read Brown v. Board of Education, and flown to San Francisco from O'Hare. Our brains are different from the originals' and so are those of the bearers of the "new" rights.

I appreciate Balkin's and Strauss'lawyerly efforts to take on this bunk. I also think it is serious, but not because of its doctrinal power, but because by reason of its narrowness, it will be unable to provide legal propositions of sufficient adequacy to satisfy the purposes for which we have a constitution and a process for interpreting it for our actual contemporary and hoped-for future life as a nation.