Balkinization  

Friday, June 22, 2007

Promissory Constitutionalism

Guest Blogger

Malla Pollack
Professor, American Justice School of Law

My deep thanks to Professor Jack Balkin for graciously responding to an email criticizing his draft of Original Meaning and Constitutional Redemption, with an invitation to publish my criticism on his own blog.

Professor Balkin’s impressive article correctly sees the United States Constitution as the central icon in a civic religion capable of evoking redemptive action by its citizens -- Sanford Levinson’s constitutional faith. Balkin errs however in arguing that this faith must or should tie itself to the original meaning of the historical document. This error is softened, but not eliminated, by his willingness to read “abstract principles and standards” without limiting them to originally expected applications.

Originalism is symbolically unacceptable. Insisting on original meaning implicitly endorses the exclusions practiced by this country’s acknowledged founders. Slavery, attempted genocide of the earlier inhabitants, Justice Story’s Christians-only reading of religious liberty, property and gender requirements for voting or holding office--- none of these positions can be adequately dealt with by blithely claiming that the framing white males were moral enough by the beliefs of their own time. We are not discussing judging them as men. We are considering using them as shared paradigms of the past. How dare anyone ask the descendants of those the founders despised to voluntarily adopt these men as honored ancestors. Originalism has the same emphatic symbolism of hatred as flying the Confederate Flag over a court house. To fulfill Professor Balkin’s (and my) goal of joining the entire citizenry of the United States into a single community aiming at shared redemption, we need to loosen our hold on the past.

Originalism, furthermore, is not necessary. We do not need to wave this flag of exclusion.

First, original meaning is not required to create a link between citizens and the constitution-as-holy. The document has “social legitimacy” in the words of Richard Fallon, Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1792 (2005); a 1997 poll reported that 91% of Americans considered the Constitution to be “important” to them personally. School teachers, public speakers, leaders of youth organizations, parents, etc. forge this tie without needing help from mere law professors or legal theory.

Second, letting go of original meaning does not reduce the document to nonsense. Many words change meaning over time in reflection of speakers’ gradual changes of belief about the outside world, including moral and political policy. Some do not. Usually the need to use an archaic meaning is jarringly obvious, consider “letters of marque,” Art. I, Sec. 8, cl. 11. Sometimes we need to ponder the choice. Perhaps if Professor Balkin and I worked through the document word by word, though starting from opposite base lines, we would largely converge on when to use an old and when to use a newer meaning. But how would his theory include an air force inside Congress’ power to “raise and support armies,” and “maintain a navy,” Art. I, Sec. 8, cls. 12, 13? How would it deal with “recess” in Art. II, Sec. 2, cl. 2? Can it shrink state sovereign immunity?

My essential pragmatism, furthermore, warns me against any theory named “originalism.” The history of constitutional interpretation demonstrates that immoral (or more politely non-aspirational) outcomes repeatedly stand on refusals to let the meanings (or extensions, or applications, etc) of words change over history, rather than the opposite. For example, I think that most lay persons are unpleasantly surprised to discover that courts enforce only an archaic, technical, narrow meaning of double jeopardy, the right against self incrimination, habeas corpus, and other basic protections against government over reaching. In sum, for an aspirational constitutional doctrine, the default should be modern meaning; the exception should be originalism. (I have argued for one exception, “promise” in Art. I, Sec. 8, cl. 8 is commonly given a modern incorrect reading-- but that error is not made because of a conscious decision to use modern language. See Malla Pollack, What is Congress Supposed to Promote?, 80 Nebr. L. Rev. 754 (2001)).

Finally, originalism is not required because the Constitution is a legal document enforceable over time. Professor Balkin relies on the analogy of statute; many rely on the analogy of contract. Neither of these is a good fit. The United States Constitution is much too difficult to amend. This point is so commonly made that it needs no further discussion.

What is seldom discussed, however, is that we can have textualism without originalism. We can read the constitution as a promise; we can hold tight to the historical text as amended, but read it through living eyes. Promissory textualism supplies the same emotionally fulfilling tie among the historical document, the current population, and all future populations as does originalism -- but without originalism’s insults to this country’s current population. For a fuller discussion of promissory constitutionalism and the arguments made earlier in this blog entry, see Malla Pollack, Dampening the Illegitimacy of the United States Constitution: Reframing the Constitution from Contract to Promise, 42 Idaho Law Review 123 (2005). (Both of my cited law review articles are available at <http://works.bepress.com/malla_pollack/>.)



Comments:

What is seldom discussed, however, is that we can have textualism without originalism. We can read the constitution as a promise; we can hold tight to the historical text as amended, but read it through living eyes. Promissory textualism supplies the same emotionally fulfilling tie among the historical document, the current population, and all future populations as does originalism -- but without originalism’s insults to this country’s current population.

What a fascinating concept - "textualism" where the words of the Constitution have no fixed meaning. If words have no meaning, judges might was well use the latest edition of the National Enquirer instead of the Constitution to make their rulings.
 

"Finally, originalism is not required because the Constitution is a legal document enforceable over time."

THis has it backwards. It is precisely BECAUSE the Constitution can be amended, that interpreting the text to have new meaning is neither necessary nor appropriate.

If there were no procedure for amendment, clearly the Constitution's text could not be changed to meet changing circumstances, and we would be forced to resort to 'interpretation' to deal with the resulting shortcomings.

But, there IS an amendment process, one which has been used successfully on over a dozen occasions. Given that fact, is becomes obvious that use of 'interpretation' to secure 'changes' to a text which can be formally changed is NOT a matter of necessity.

Rather, it's simply a way of circumventing the safeguards built into that formal amendment process, in order that the federal government can obtain 'changes' to it's own charter which the people, by way of the state legislatures, would reject.

The fact that formal amendmnet is possible, then, reveals informal 'amendment' for the illegitimate usurpation of the states' authority to approve or reject amendments that it is.
 

right, nobody is affirming slavery.

I see Jack's Originalism as a merciful coping mechanism, something like affirming the virtues of one's own parents, even though all parents are not perfect and to some degree victims of their own social context, even blacks.

when faced with contradictory law, why not begin with values we've agreed upon in the past?

Malla, I'm afraid that your notion essential pragmatism is insufficient to anchor us against Cheney's will to power.
 

This is a great piece. Pollack goes to the head of the line. Her insight that you cannot expect those excluded by the founders to interpret the constitution according to some supposed late 18th century exclusionary meaning is very shrewd. Originalism cannot and does not work in practice.

Orignalists think that there is one historical "meaning" of a constitutional phrase---that if they just do enough research, just dig deeply enough, they will discover that historical truth. But as anyone reading spirited debates among professional historians (not lawyers or law professors interested in using history to make a legal argument)quickly realizes, these professionally-trained scholars come to different conclusions reading the same AMBIGUOUS documents. The debate raging right now between Lawrence Goldstone and Gordon Wood is an example of this.

Does anyone think that our two foremost originalists, Justices Thomas and Scalia, could pass an introductory course on colonial history?

Perhaps there should be a peer-enforced rule that anyone writing on originalism is required to quote and address Chief Justice Hughes' observations on the topic in Home Building & Loan Association v. Blaisdell. (And most of us would agree that of those who have served on the Court, no one has had a higher legal IQ than Hughes).

dah
 

The debate raging right now between Lawrence Goldstone and Gordon Wood is an example of this.

Those interested can find this debate here (scroll down to June 20 and 19).
 

Malla,

Yours is a very serious topic, one that, I think, originalists and conservatives need take more seriously.

Though I strongly disagree with some of his ideas, Harry V. Jaffa (and Justice Thomas who follows his theory) is one of the few originalists who realizes that those "compromises" with "evil" which you invoke destroy the ability of originalists and conservatives to take the moral highground in constitutional debate.

His solution is to read the constitution through its ideals not compromises with those ideals.

And indeed, almost every evil about which you speak, is able to be judged as such by using moral standards of the Western Enlightenment -- the unalienable rights of "liberty" and "equality" -- the same moral standards which gave rise to the Declaration and the Constitution in the first place.

But I also agree with Jack Balkin that viewing the Constitution through its abstract ideals (what I support), as opposed to the (morally unacceptable) compromises with those ideals (slavery, etc.) opens the door to plenty of "results" with which social conservatives would disagree.
 

I'm not sure the breadth of the reliance on the acceptance of slavery as a means to tar orginalism. To take one specific example given.

First, slavery was an established fact at the time. It was not going to be abolished in 1791. So, the Constitution had to be set up to deal with it. Today we allow many horrible things to go on, including some treatment of our own citizens in prisons (inherent hellholes), since we are imperfect and have no easy solutions as of this moment.

Second, many Framers despised slavery, and seriously hoped/believed it would die out. This puts to lie some of the comments of Taney in '57, since they thought the C. could be interpreted to deal with its passing or limitation when it came. Even Madison commented on the inherent evil of slavery in the Federalist.

Third, the Constitution was amended. This applies to other examples, such as gender rights. The "originalist" position isn't only applicable to 1789-1791. I dare say we can respect society has grown over the years and still respect people in a more benighted age. We honor ancient philosophers to this degree, interpreting their views with the gloss of later history.

Let me say that I respect the views put forth here and do think a genuflection to "originalism" is a somewhat dubious enterprise since we have to view constitutional text as it is understood now, an understanding view a type of common law constitutionalism that is much different from then.

Constant honoring of Madison, Jefferson, et. al. has its place, but at some point it is unreal. We have moved on. See also the understanding of the gospels. Those who think we do or can follow them as they were in 50CE are deluding themselves.

Btw note how common law works with "text" too ... it simply is how it has been done in this country. I think rightly, but those who think not can say "la la la" all they want, but it will still be the case.
 

How does "original meaning" not commit the Intentional Fallacy? Are Courts now divining transpsychic intentions of 18th C. free-thinkers, Calvinists, Rationalists, and Empiricists?

But the precious choice of "promissory" as the title should expose the "pragmatists" as less than pragmatic. A Promissory Note is among the briefest, simplest documents of contractualism.

According to extreme pragmatists of the Richard Rorty type, "useful" (cf., "use") determines meaning in the indeterminacy of rhetoric. "I promise to pay . . ." in pragmatists' slippery slopes allows all sorts of equivocations of meaning. "Promise" is no longer a guarantee, it's more like "if it works out for us." "Pay" is no longer in an action or performance, but a forms or slavery. And, attorneys, judges, get to split the difference.

"Do We Mean What We Say?" Not in the indeterminacy of originalism's intentional fallacies and extreme pragmatism's "useful determines meaning," thus all is relative. (Let's add deconstructionism and postmodernism to the rhetoric of indeterminacy, and see just how far all this nonsense goes).

Whether one is a linguistic essentialist or nominalist, J. L. Austin's "How To Do Things With Words" is still in print after 50 years and may, just may, open the vistas to Speech Acts, Intentionality, the Construction of Social Reality, and a Rediscovery of the Mind. But if Behaviorists can still persuade folk that "inputs = outputs," then the "excluded middle" of "thinking" won't matter to pragmatists, originalists, postmodernists, deconstructionists, etc., because they do not want it to. Then "I promise to pay . . ." means anything we want it to mean, and no one can arbitrate or divine any better than anyone else, only those with the Will to Power and "equal protection" can mean "separate but equal."
 

What a fascinating concept - "textualism" where the words of the Constitution have no fixed meaning. If words have no meaning, judges might was well use the latest edition of the National Enquirer instead of the Constitution to make their rulings.

This is not a serious argument. It avoids the obvious fact that the meanings of many words have unquestionably and demonstrably changed over centuries of time. Yet you would tell us that when the meaning of a word identifiably changes this is tantamount to "no meaning." That is truly backwards logic.

When a newly accepted definition is identifiable it goes straight to the legitimacy of the Constitution. The surest way for the people to lose faith in the document is to prohibit it from meaning what reasonable people understand the words to mean. Rendering it hidebound to outdated meaning is a deliberate attempt to turn the Constitution into an anachronism. There is no surer way to destroy its legitimacy with the American people.
 

"Professor Balkin relies on the analogy of statute; many rely on the analogy of contract. Neither of these is a good fit. The United States Constitution is much too difficult to amend."

I don't see how the difficulty of amendment makes a Constitution less like a contract. If the other party doesn't want to change the deal, contracts are also impossible to amend.

My reason for being a (semi-)originalist is that semi-originalism is the only interpretive theory that fits with how the Constitution presents itself in its indexical language like "this Constitution" and forms of "here" and "now." For instance, the meaning of "now" is obviously tied to the time of the adoption of the Constitution, and if it is, then we should understand the Constitution as if spoken at the time of the Framing. So the meaning of constutitional language today isn't interpretively relevant, except insofar as it might be a guide to the sense expressed by that language historically.

"[W]e can have textualism without originalism. We can read the constitution as a promise; we can hold tight to the historical text as amended, but read it through living eyes." Hmm. It's not obvious why we shouldn't also construe a promise according to the sense expressed by its language at the time the promise is made. If I promise to give my daughter a billion dollars, meaning 10-to-the-9, but then somehow the old British 10-to-the-12 usage somehow takes over, so that everyone uses "billion" to mean 10-to-the-12, my promise should obviously be construed according to the meaning of the term at the time I made the promise, right? I'm probably missing something that the articles make clear, though.
 

Here's a better example, based on the actual change: suppose someone in Britain promised me a billion dollars years ago, when billion meant 10-to-the-12 there. That they've changed, so that "billion" now means 10-to-the-9, shouldn't reduce the obligation of the promisor.
 

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