(cross-posted at Balkinization)
The discussion between David Strauss and myself about whether originalism is a good idea for liberals has by now gone well beyond the narrow question of originalism itself and moved on to far deeper topics-- rhetoric, faith, and legitimacy. I cannot address all the valuable things David has to say in his last post, but here are a few comments on what I thought was most worthy of note.
I. "Rhetoric" versus "Legal Argument"
In his second post, David agrees with me that my text and principle approach "provides resources that [his] does not, particularly to groups that are trying to change the status quo," but that "the resources are rhetorical." He argues that conservative uses of common law and precedent and appeals to "deeply rooted practice[s]" are also powerful weapons for progressives, too.
Assuming that David is right about the latter claim, nothing in my text and principle approach rules out the use of appeals to precedent or tradition, or to consequences for that matter. It treats them as fully appropriate modalities of legal argument for fleshing out and implementing text and principle, and for making structural arguments where the Constitution is silent.
Indeed, I would argue that not only is common law development of doctrine by courts not hostile to originalism, it is implicit in the grant of judicial power in Article III (other aspects of common law adjudication are also assumed by the Seventh Amendment). Thus, there is a pretty good originalist argument for judicial construction of doctrine over time using common law methods.
Thus, under my approach, at least, one can have the best of both worlds, and employ all the resources of constitutional argument.
David's approach, by contrast, regards appeals to the constitutional text and its underlying principles as merely "rhetorical," rather than genuine legal arguments. As he says, when we make originalist arguments, "we should understand that we are making a rhetorical move. That's not disreputable; it's just not a legal argument."
I found this claim puzzling. What is the nature of David's distinction between "legal argument" on the one hand, and "rhetoric" on the the other? I had thought that all of the traditional modalities of legal argument were simultaneously rhetorical forms and valid modes of legal argument. David's claim seems to be that we should write off two of the modalities of legal argument-- arguments from text and appeals to principles derived from history-- as not really legal arguments at all. They are not real reasons; they are just window dressing. This makes arguments from precedent, tradition, and consequences (and possibly structure) the only appropriate forms of legal argument; the rest is mere rhetoric. You may notice the irony: in the past progressives have accused originalists of writing off (or downgrading) every form of argument except appeals to text, history and structure because they are "just politics" in disguise.
I am hoping that David does not really mean to say that arguments from text and principle aren't legal arguments. What is it that would make them mere "rhetoric?" Surely appeals to precedent and tradition are rhetorical: so too is the act of characterizing traditions and generalizing from and distinguishing cases. Perhaps it is David's concerns about the manipulability and uncertainty of choosing appropriate levels of generality. But all of David's previously expressed concerns about levels of generality also apply to arguments from precedent and tradition. Usually more than one principle can be derived from a case or a traditional practice, and you can read a case or a tradition either broadly or narrowly. Both principles and traditions, moreover, can be articulated at higher and lower levels of generality.
Nothing David has said really convinces me that appeals to text and principle aren't genuine legal arguments (like arguments from precedent and tradition) that offer reasons to interpret the Constitution one way rather than another. And if they are, why would one adopt an approach to constitutional interpretation that gives progressives fewer resources for legal argument rather than more?
In any case, I'm not sure that David is right that appeals to deeply rooted practices are the best way to promote a progressive constitutional agenda, especially in our current age. They might be a good way to defend against further changes by conservative social movements, but not necessarily to seek significant reform or to reject traditional practices that are unjust. My sense, rather, has been that appeals to deeply rooted practices and precedents tend to put liberals in a defensive posture. And my understanding of American history is that energized social movements for change usually call on the Constitution and its text and principles to reject what people previously thought were settled questions. They succeed by unsettling those questions and making them controversial. And when social movements succeed in changing people's minds about what the Constitution means, they tend to win in courts as well.
History seems to show that constitutional change often comes from social movements and political parties changing constitutional culture, which is then ratified by courts. If that is so, then arguments from text and principle are probably just as important as arguments from precedent in promoting either a progressive or a conservative agenda, and probably more so. Indeed, I don't think it is an accident that conservative social movements in the past generation have regularly made claims about the text of the Constitution and the purposes of the founders. Appeals to what I call text and principle have been a common feature in the arguments of most successful social movements in the United States.
Liberals have been fighting a defensive battle against insurgent social movements from the right for a generation. If I am correct about this, then for liberals to stop playing defense and push their claims forcefully once again, they cannot afford to throw away the modalities of text and principle.
II. Precedent and the Hardwired Constitution
One puzzle with David's common law approach, as I noted in my first post, is that it is hard to explain why the hardwired features of the Constitution are not subject to common law modification in the same way that judicial precedents are. If you look at David's account of why the text is biding in his Yale Law Journal article, you can see that he argues (1) that it provides a focal point for discussion, and (2) that it solves problems of coordination. As he explains, "it is more important that things be settled than that they be settled right. A legal provision can settle things, and sometimes the importance of settlement alone is enough to make the provision binding." However, "[t]he binding force of the provision rests on its functional ability to settle disputes, and not at all on whether the entity that enacted the provision is entitled to obedience or "fidelity.""
The puzzle for me is that the same things could be said of precedents. Precedents can also serve as focal points for discussion. (Think about McCulloch v. Maryland or Brown v. Board of Education.). Precedents also can settle contested questions, because, after all, they also have the force of law, and one might equally say that it is better that they be decided than that they be decided correctly. But if that is so, then why shouldn't our views about the bindingness of certain precedents be precisely the same as our views about the binding character of certain "hardwired" features of the Constitution, for example, that the President serves only four years per term, that there are only two houses of Congress, and so on?
That equivalence goes in two directions. If we decide that the length of the President's term must remain four years because the text says so, whether or not that is a good idea, why isn't the result in an old precedent like Plessy v. Ferguson equally binding on us, because it also settled an important question of law, whether or not the decision was a good one? Conversely, if we think that a long standing precedent like Plessy can be overturned or modified on a sufficient showing to a court that it has outlived its usefulness as a settled decision and now imposes very serious injustices, why couldn't we say the same thing of the limitation on Presidential terms, the Presidential veto, the malapportionment of the Senate, the Electoral College, and so on? If there is nothing special about the text that differentiates it from precedent, why couldn't courts change these rules through common law adjudication? Why couldn't the Supreme Court decide, for example, that a President can serve a longer term in office than four years because the country needs him?
The answer that an originalist like me would give is that the Constitutional text stands on a different footing than common law implementations of the text. Common law adjudication fills out contested issues surrounding text and principle, but it cannot contradict the text. But because David wants to blur that distinction, I'm not sure that the same answer is available to him.
III. Legitimacy and the Role of Commitment
David argues that a common law constitutional system poses no special problems of legitimacy, because the British system is also a common law system. I'm not sure this is a complete answer.
First, the British system has a different theory of sovereignty than the American model. The British system is based on Parliamentary sovereignty-- Parliament can change pretty much any aspect of the constitutional system at will, and Parliament can overturn decisions of courts. (The extent to which Parliamentary sovereignty has been affected by greater European integration and by the passage of the Human Rights Act I leave for others to determine). By contrast, the American system specifically broke from the English model. It was based on a system of popular sovereignty with delegated powers to the states and the Federal government, separation of powers, and demarcations of rights as limitations on government power. These delegations of power and restrictions on power were established by a written constitution, which was demarcated as supreme law. Therefore it seems to me that common law adjudication of constitutional doctrine has a different place in the American system than common law decisionmaking does in the British system. The American system seems to place the written constitution above ordinary common law and even above judicial constructions of the written constitution using common law methods. And the choice of a written constitution was designed to establish a particular model of popular sovereignty.
The theory of popular sovereignty creates a problem for David's common law model, under which the text is binding only because it serves as a focal point or solves coordination problems. What connects the work of courts to the theory of popular sovereignty in his model? The answer to that question is particularly important if common law courts can disregard or modify the commands of the constitutional text, even the hardwired features. David's is not the only theory that faces this question, but because he regards the text as on the same level as precedent, it arises even more urgently for him.
Finally, David argues that faith is not really necessary to constitutional legitimacy. He also denies that legitimacy requires that we see the Constitution as the project of many generations. (This is a puzzling claim to make for somebody who believes in a traditional constitution, but put that question aside for the moment). David reasons that even if judgments of legitimacy depend on what may happen in the future, making that judgment "is just a matter of collecting and weighing the evidence in order to figure out what the system is like today and will be in the future." That is to say, legitimacy does not depend on our attachment to the Constitution or our attitude toward it; it depends rather on a "cold-blooded" weighing of future probabilities.
I think this overlooks the attitudes of commitment and attachment that are necessary for a successful constitutional system to operate over time. For the Constitution to be legitimate, people cannot be in the position of perpetually calculating whether to defect from it or not. Rather, Constitutional government requires commitment to make the constitutional system work over time. That requires that you decide to put yourself on the side of the Constitution, wanting it to succeed, and feeling that you have a stake in it, rather than straddling the fence of obedience, so to speak. This is not a question of the presence or absence of rationality: Commitment or the lack thereof can create self-fulfilling prophecies of success or failure for constitutional systems.
David offers the example of a military coup where the junta promises that it will restore democracy soon and asks people to be patient. But in that case the Constitution has been suspended. The junta is not asking for faith in the constitution; it is asking for belief in their good faith as individuals. A far better example of the need for constitutional faith concerns whether people should have joined the Constitution in 1787 and worked for its success, when it was by no means certain that this new form of government would last. Benjamin Franklin famously said at the end of the Philadelphia Convention that he would support the new Constitution not because it was free of defects-- for in his view it was not-- but because he thought it was the best that could be done under the circumstances, and that he believed and hoped that it would succeed, and that it would eventually live up to its promises. Therefore he argued that it was worth working for its success. I call this attitude of attachment and commitment faith; it was crucial to the new Constitution's success, and is so even to this day. David may not like the use of the word "faith," perhaps because he is suspicious of religious language. But I see no reason to shy away from it as a way of understanding the sort of attitudes of commitment and attachment that are necessary to preserve the legitimacy of constitutional government in a system like ours.