November H2H: David Strauss' first post
In two recent and very interesting articles (here and here), and in a number of blog posts (here, here, here, and here), Jack Balkin has argued that liberals should start being originalists. Other important scholars have taken the same position. I don’t think that’s a good idea, and I’m grateful to Jack for giving me the chance to debate him on our law school faculty’s blog and on his own blog.
There are at least two reasons why it’s bad idea for liberals to embrace originalism. The first is that originalism is not a good approach to constitutional law; in fact, I’m not sure it’s an approach to constitutional law at all, as opposed to a kind of rhetorical trope. It’s a way of invoking the authority of earlier generations for a position that is actually justified on other grounds. If that’s right, then no one, liberal or conservative, should be an originalist.
The second reason is that I think originalism may be, in its nature, illiberal. That’s because—I’m not sure of this, but I’m afraid it might be true—originalism relies on a kind of parochialism and American exceptionalism that liberals, especially, should reject.
1. “Originalism” can mean several different things. Jack is very careful in specifying the kind of originalism he has in mind. He says that what is binding is not the “original expected application” of a constitutional provision, but rather the “original meaning” of the text of the provision and the “principles that underlie the text.”
The difference can be illustrated with the Eighth Amendment’s prohibition against “cruel and unusual punishment.” It’s clear that when the Eighth Amendment was adopted, no one thought that it would outlaw capital punishment. The “original expected application” approach says that therefore capital punishment can’t be unconstitutional under the Eighth Amendment. Jack would proceed differently: he would say that the question is whether capital punishment is “cruel” according to the original meaning of that word and the principles underlying the prohibition. The answer to that question might be that capital punishment is indeed cruel and is therefore unconstitutional.
There are lots of problems with “original expected application” originalism, many of which can be seen by asking a question like: What was the original expected application of the First Amendment (adopted in 1791) to a law regulating indecency on the internet? (That might seem like an unfairly chosen example, given the spectacular newness of the internet, but I don’t think it’s unfair; it just makes some of the problems of originalism vivid.) But that’s not the form of originalism that Jack embraces—he’s quite critical of it—so I’ll leave it alone for now.
The problem with “text and principles” originalism of the kind Jack endorses is that it allows us to justify pretty much anything. I think it is a sophisticated iteration of what might be called the “levels of generality” maneuver. Here is how that maneuver works. Suppose you are trying to justify Brown v. Board of Education on originalist grounds. It’s pretty clear that when the Fourteenth Amendment was adopted, people did not think it made school segregation unconstitutional, pace my friend and former colleague Judge Michael McConnell. So if you’re an originalist, and you want to justify Brown, it looks like you have a problem.
But what if you recharacterize the original understanding, in a way that is no less accurate? Yes, they didn’t think they were outlawing school segregation. But they (the drafters or ratifiers or whoever the relevant group is) did think they were requiring racial equality with respect to certain important rights. If we conclude, today, that—contrary to the understanding in 1868—education is such a right, and segregation is inconsistent with equality, then, presto, Brown is a faithful—indeed mandated—implementation of the original understandings.
I think that is essentially what Jack has done in one of his papers, which argues that there is an originalist justification for a Fourteenth Amendment right to an abortion (and also, if I read him correctly, an originalist justification for Lawrence v. Texas, which invalidated laws forbidding same-sex sodomy). Of course no one in 1868 remotely thought that they were protecting abortion rights or gay rights. That was even more remote, by orders of magnitude, than invalidating racial segregation in schools. But the Fourteenth Amendment, Jack says, is about outlawing class- or caste-based legislation. And laws forbidding abortion constitute class- or caste-based discrimination against women. So we have an originalist justification for Roe v. Wade.
This is all OK as a matter of rhetoric—it’s fine to try to enlist the Framers on your side, if your cause is just—but I just think it is not a helpful way to address constitutional issues. I think what Jack has done is just to kick up the level of generality until he’s reconciled Roe and originalism. But what justifies the move up the ladder of generality, from “equality with respect to common law rights” (roughly, the central subject of discussion when section 1 of the Fourteenth Amendment was adopted), to “racial equality,” to “no caste or class legislation”? And why stop there: why not say that the Fourteenth Amendment is about equality and fairness, full stop, so that any laws that we consider unequal or unfair are unconstitutional?
There are two problems here, and I don’t think Jack’s key notions—“meaning” and “principles”—give us much help with either. One is the question of where to stop this ascent. But even if we knew that the right way to think about the Fourteenth Amendment is that it forbids class or caste legislation—not at a more specific or more general level—it seems to me that the judgment that some particular law constitutes caste or class legislation is one that we make on some other basis; and that basis is concealed by the invocation of originalism.
So: Why does the Fourteenth Amendment forbid anti-abortion laws, or discrimination against gays, or school segregation, but not the progressive income tax or rent control—laws that which can be (and are, by some) characterized as “class” legislation? Or, for that matter, why aren’t the Bush tax cuts unconstitutional because they were “class” legislation? Or maybe their repeal would be? Or perhaps the war in Iraq is unconstitutional because certain social and economic classes are so heavily represented in the front-line military? And so on.
There are answers to these questions, but I don’t see how you get them from originalism, however originalism is defined. You have to get them from somewhere else—whether you give “liberal” or “conservative” answers. My own view is that they come from an amalgam of precedent and normative reasoning that is characteristic of the common law, but that’s another subject. The main point is that I don’t see how the invocation of originalism helps us to analyze these issues, or to justify the positions we take. Something other than originalism is doing that work, and talking about originalism just obscures that fact."
2. I am less sure about my second argument, but if it is right, then it is more troubling, because it suggests that originalism is not just empty but maybe even pernicious. Thomas Jefferson posed a famous challenge to the use of written constitutions: essentially, that adhering to a constitution adopted by a previous generation is a form of irrational ancestor worship. I think there is a way around Jefferson’s objection in certain kinds of cases: sometimes, adhering to an old text, or even to original understandings, can be justified for reasons that have nothing to do with ancestor worship. For example, it is a good thing that we know how long a President’s term is and when he must leave office, and you don’t have to worship our ancestors (or even like them) to realize that it makes sense to rely on the Constitution to settle those matters.
But when you start to use old, abstractly-worded provisions of the Constitution to resolve highly controversial issues, then you have Jefferson’s problem. Why exactly, to choose a pressing example, should the attitudes that late-18th or mid-19th century people had about firearms determine an important issue of pubic policy in the incomparably different world of today? You can substitute any number of things for firearms in that question (“gender roles,” but also “jury trials”); it is not a liberal or conservative concern.
When originalists—liberal or conservative—try to answer questions like that, they usually, and I think unavoidably, start slipping back into ancestor worship. The central idea seems to be that we owe it to the earlier generations to maintain some kind of continuity with them. So there are invocations of “fidelity,” veneration of the text of the Constitution, talk about conversations among generations, assertions about American traditions—things like that.
This seems to me a troubling way to think about constitutional law, and it should be especially troubling for liberals. There should be room in our society for people who do not feel any affinity to American traditions and who do not especially want to be in a conversation with (someone else’s) ancestors. The decisions we make on matters of constitutional law will affect those people, and we ought to be able to give them an account of how we make those decisions that relies only on the demands of reason. Of course, any nation’s institutions will be, in significant part, the product of historical accident. But there are often sensible, functional reasons for accepting those accidental institutions. Once we get past those reasons and begin to rely on the distinctive American-ness of something as a justification, we run the risk of being parochial and exclusionary.
Jack has written eloquently and effectively about the dangers of what he calls “idolatry” in constitutional law, and I am certain he and I do not disagree in principle on this point. Also, Jack’s version of originalism allows a wide range for arguments based on reason alone—that’s why I question whether the originalism component is more than a rhetorical device. But I do wonder if even the invocation of originalist rhetoric is something that liberals, especially, should be wary of doing.