How Not to Critique Originalism

Stephen Griffin

The article I referred to in an earlier post, “Rebooting Originalism” is now on SSRN. In that post, I said I would address a critique of originalism associated with the “Princeton school” of constitutional interpretation. One of the best known works of this school is a unique casebook, American Constitutional Interpretation, edited (in its third edition) by Walter Murphy, James Fleming, Sotirios Barber and Stephen Macedo. For the purposes of this post, I’m concerned with two recent publications of the Princeton school, Walter Murphy’s grand opus Constitutional Democracy and Barber and Fleming’s Constitutional Interpretation. Both are critical of originalism, at least its “narrow” versions and advance arguments similar to those made by Ronald Dworkin. I’m sympathetic generally to Dworkin’s project, having taken a seminar from him at NYU when he published Law’s Empire. But I’ve gradually come to the view that critiques of originalism that do not take law seriously (so to speak) are somewhat off the point.

Consider how Barber and Fleming define their own position on the Constitution. They state: “The words and phrases of the constitutional document express a relatively clear set of intentions or meanings if by meanings we mean general concepts or ideas and if by intentions we mean abstract intentions. We have clear evidence in the constitutional text that, through their representatives or the framers, ‘We the People of the United States’ intended to provide ‘due process of law,’ ‘equal protection of the laws,’ regulations of ‘commerce’ and other things in a complex institutional scheme for achieving ‘Justice,’ ‘the common defence,’ ‘the general Welfare,’ and the other goods or ends listed in the Preamble. . . . Because constitutional provisions like due process are expressed as general concepts, the constitutional text itself is evidence that the framers’ intentions were abstract.” (p. 83)

Scholars familiar with constitutional theory will recognize this argument as Dworkinian, with the distinctive emphasis on the preamble and “goods or ends” I associate with Barber. Now what might an originalist object to in this account? It’s hard to tell in Barber and Fleming’s book where originalists are coming from. There is some reference to an assumption that originalism flows from a concept of democracy. I do not think this represents the self-understanding of most originalists, especially the “new originalists” like Whittington and Barnett that they most want to critique.

My take is that scholars like Whittington and Barnett look at the view quoted above and do not see much that has to do with recognizing that the Constitution is a law. Rule of law values are quite important to new originalists. To be legally enforceable, the Constitution must have a fixed meaning. In fact, if it did not or could not have a fixed meaning, there would be no point in giving it the status of a law in the first place. To support these points, originalists can call on a veritable ocean of historical evidence from the eighteenth and nineteenth centuries about the nature of law (none of which is acknowledged by Barber, Fleming, or Murphy). At the end of it, there is not much of a meeting of the minds here, a true debate.

When Barber and Fleming focus on Whittington’s views, they spend a lot of time on his distinction between interpretation and construction. That’s relevant, but it misses Whittington’s critique of Dworkin himself: “Dworkin is no doubt right that in order to have conceptions of fairness, we must also have a concept of what it is to be fair. It does not follow, however, that both were constitutionalized, nor does it remove the issue from one of historical evidence to normative debate. . . .the search for intention must be guided by the historical evidence itself. The level of generality at which terms were defined is not an a priori theoretical question but a contextualized historical one. In some instances, the founders may have used terms quite expansively, and at other times seemingly broad terms were conceptualized at a relatively narrow level.” (Constitutional Interpretation at 185, 187)

Well, that’s just a sample and Whittington can defend himself this week at APSA. Unfortunately, I won’t be there to see it. But the Constitution-as-aspiration or reaffirmation of values is a theory that Whittington criticizes quite trenchantly in his book. I don’t see any true engagement with his critique or his rule of law approach to the Constitution in Barber and Fleming. So while I admire the many astute points Barber and Fleming make against various forms of interpretive theory, as against the “new originalism,” I think they missed their target. To an extent, I regret that the Dworkinian critique of originalism flamed out, because it would have made the theoretical debate much simpler. But my sense is that its moment has passed.
Posted 10:10 PM by Stephen Griffin [link]