The University of Chicago Law School Faculty Blog

H2H: Jack Balkin's Last Word

(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.

H2H: Strauss' Second Post

(cross-posted at Balkinization)

Jack Balkin’s insightful and fair-minded response raises several interesting issues.

1. First, the “levels of generality” problem. The “original expected applications” originalists have a solution to this problem, in theory. They would say that a provision should be construed at the level of generality that was originally understood (or that the Framers intended, or whatever). So: can the Cruel and Unusual Punishment Clause be interpreted to forbid capital punishment? That would depend on whether the original understanding was that the Clause was to be interpreted dynamically; and if so, how dynamically. Specifically, was the original understanding that the Clause should be interpreted dynamically enough to permit “cruel and unusual” to be extended to cover capital punishment at some point in the future? (And I guess the further question, for this kind of originalist, would be whether we are now at that point.)

Of course, in practice, questions like these will almost never be honestly answerable. Even if they were answerable, the ultimate question, about being ruled by dead people, remains. But in principle, “original expected application” originalism tells us how to deal with the levels of generality problem.

But if you’re not an “original expected application” originalist, as Jack is not, then I think you’re stuck. You’re not going to look for the level of generality in the original understandings (if you did, you’d be an original expected application person); you’re going to get the appropriate level of generality from somewhere else. The somewhere else might be precedent, or it might be morality, or some combination of those two, or something else.

The language of the provision, and perhaps the historical materials, may place an outer bound on what values and principles you can attribute to the provision, although I’m not even sure about that: the idea that the Equal Protection Clause mandates “one person, one vote” became settled law pretty quickly in the face of overwhelming historical and textual material to the contrary. But in any event, the legal conclusion will be driven by something other than the original understandings, however defined.

2. For that reason, Jack is right on the money in his characterization of our disagreement. I do not agree with his position that common law development is a means of “implementing and applying constitutional values.” “Implementing and applying” suggest that the big decisions were made by the people who adopted the constitutional provision in question, and that we, today, are just the servants, the implementers. I don’t think that’s an accurate, or attractive, account of American constitutional law.

I think constitutional law is better described as a process of resolving disputed issues using the tools of the common lawyer—precedent and past practice, which we use out of a sense of intellectual humility and also because of the importance of stability, coupled with essentially moral arguments of fairness and good policy. If we can get the Framers on our side, so much the better. But basically we are making the decisions, not implementing decisions made a century or more ago. (Jack asks why, on a common law account, we should pay any attention to the text, including what he calls the “hard wired” provisions. Those are very good questions; I’ve tried to answer them, at inordinate length, at 112 Yale L.J. 1717 (2003) (a draft of that article is here).

I should say in this connection that I totally agree with Jack about the importance of non-judicial constitutional lawmaking. But precedents are hugely important when, say, Congress and the President have a dispute over their respective prerogatives.

3. So far I haven’t said much about the specific concerns of liberals. Jack argues that his way of thinking about constitutional law provides resources that mine does not, particularly to groups that are trying to change the status quo. Again I think he is right, but for the reasons I’ve given, the resources are rhetorical. More to the point, though, small-c conservative rhetoric of the kind that progressives have been using in recent years is a pretty good weapon. That kind of conservative impulse runs deep in judges, and I think in citizens too.

Consider the constitutionality of affirmative action, for example. There is a very strong argument that the original understanding of the Fourteenth Amendment permitted affirmative action (and of course an extremely strong argument that nothing in the text of the Constitution or the original understandings forbids the federal government from engaging in affirmative action—or from discriminating against minorities). But outside the academy no one much seems to care about those originalist arguments. What does seem to persuade the Justice Kennedys and Justice O’Connors, along with innumerable business people and military officials whose political inclinations would otherwise make them opponents of affirmative action, is essentially a Burkean argument: that whatever the abstract objections to affirmative action, it has become a deeply rooted practice in American business, education, and government, and it works pretty well.

My hunch is that that is generally the more effective way for progressives to argue, when they can. If it is more effective sometimes to invoke the original understandings in some form (and sometimes, I’m sure, it will be more effective to do so), we should understand that we are making a rhetorical move. That’s not disreputable; it’s just not a legal argument.

4. Finally, a word on legitimacy. A few things in Jack’s account give me pause. First, I think legitimacy is a feature of an entire system, not just a constitution. In fact, things like the political culture of the governing class and the attitudes of one’s fellow citizens are almost certainly going to be more important, in determining the legitimacy of a system, than are formal constitutional principles, and probably more important than informal constitutional understandings, at least as long as those understandings fall within certain limits.

Second, I don’t think a common law or customary constitution poses any special problems of legitimacy. The problem of legitimacy doesn’t seem significantly different in Great Britain from what it is here.

Third, and related, Jack’s account of legitimacy seems to me a little too mystical. Jack’s point that the legitimacy of a system may depend on the future, not just the present—that’s a nice point. A system may be unacceptable now but still legitimate because of the prospect of change.

But I don’t think any of that has anything to do with faith, or that it “requires us to imagine the Constitution as . . . a joint project of many generations . . . that extends backward into the past and forward into the future.” The past might provide evidence of good or bad tendencies that will affect the legitimacy of the system; but I don’t see how that has anything to do with imagining the constitution as an intergenerational project.  It 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.

The same is true if the system is currently unacceptable, but you want to convince me that it is nonetheless legitimate because it will improve in the future. Suppose, for example, that there has been a military coup, and you are trying to persuade me to continue to support the government because, you say, the military will only stay long enough to clean up corruption and then will restore democratic civilian rule. If you want me to treat that government as legitimate, you are going to have to make a cold-blooded, rational argument about what will happen and when. I’m not going to be interested in conversations with ancestors or future people, and religious-sounding talk about faith and redemption will just make me suspicious.

I fear this is an inadequate treatment of the many interesting points Jack has made in his papers and in this and other blog posts; certainly there is much more to be discussed. Again let me thank him for this debate.

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.                     

November H2H: David Strauss' first post

(cross-posted at Balkinization)

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.

Should liberals start embracing originalism?

Jack Balkin, of Yale Law School, thinks that the answer to this question is yes.  See his two papers on the topic, here and here, and a series of posts on his eponymous blog (here, here, here, and here).  David Strauss, of Chicago, thinks that the answer is no.  David will start off this month’s Head to Head debate Sunday evening, and their exchange will last through the middle of next week.  This debate will be cross-posted on Balkinization.