an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Confused About Original Meaning Theory? Check This Out
Original meaning theory--with Jack Balkin a leading contributor--appears to be the hottest (that is, most discussed by academics) theory of constitutional interpretation today. Anyone interested in an overview of key issues and positions should check out Larry Solum's terrific (exceedingly clear) post on the distinction between semantic originalism and normative originalism. Highly recommended!
As an aside, the ongoing blog discussion of originalism (this is the fourth or so go-round on the subject) is the first serious theory to be developed through blog exchanges (in combination with papers posted in links). When utilized in this fashion, this is an amazing way to work through and communicate ideas. It's truly a new form of intellectual engagement, with almost real time exchanges that are fairly well developed. Wow. Posted
by Brian Tamanaha [link]
While Solum acknowledges the problems of vagueness, ambiguity and so forth which underdetermine the semantic meaning of particular words and phrases in the Constitution, I think he fails to come to grips with the extent of the problem, as it applies to any issue of even moderate normative complexity.
To illustrate this point, I would like to suggest (in an admittedly sketchy way) an analogy to a closely related field of historical inquiry that I think is relevant to the originalist project. As everyone knows, in the 1960s, a group of intellectual historians led by Bernard Bailyn, Gordon Wood, JGA Pocock and others initiated a fierce historiographical debate by attacking the then prevailing consensus view according to which American political thought in the late 18th century was synonymous with Lockean liberalism. In the traditional view, classical liberalism supplied the conceptual underpinning of the Constitution, including (importantly for present purposes) the public meaning of concepts such as liberty and individual rights, the relationship between the state and the promotion of the common good, the nature of democracy, and so on. (If I’ve read him correctly, Randy Barnett subscribes to some version of the Lockean consensus).
The revisionist thesis, to simplify greatly, was essentially that the founders’ political thinking was heavily influenced by classical republican ideas, mediated through Machiavelli, Harrington, etc., about civic virtue and the common good and that the Lockean consensus was thus an illusory construct invented by liberal scholars. This theme was picked up in the legal academy by mostly left leaning constitutional scholars, who thought they’d found in the republican ideal a progressive, “communitarian” alternative to rights-based liberalism. Hence, the so-called “republican revival” in constitutional theory. But this was not really a form of originalism, since, as Sunstein put it, the theory was justified in terms of constructing a “usable past,” that is, the appropriation of an intellectual tradition in order to endow one’s constitutional vision with a measure of historical legitimacy.
This movement was subjected to an equally intense Neo-Lockean counter-attack, both within and outside the legal academy, and now seems to have largely petered out, since the evidence for the influence of liberalism is difficult to resist. The founders’ may have entertained republican ideals, but their republicanism was refracted through the prism of classical liberalism.
Having said that, I think it is fair to say that the upshot of the debate has been somewhat inconclusive, with all sides more or less in agreement that there were actually several major schools that had a significant influence on American political thought in the relevant period, including classical liberalism, republicanism, the British common law, and Calvinism. The remaining debates are about the relative priority of each school, but almost no one doubts that all were extant and exerted some degree of influence on the thinking of the founding generation. There are more or less clear partisans of each view, perhaps, but they typically co-existed in complicated ways, sometimes in the mind of the same person and not always coherently. But in any event, there was certainly nothing like a linear succession of dominate paradigms.
Intellectual history, in other words, is quite messy. Insofar as one ignores this reality, he falls prey to what Daniel Rodgers has called “taxonomic intellectual history,” namely the fallacy of categorizing different persons or groups according to ideological labels, but without considering the larger social and cultural context within which ideas are generated and evolve.
Now, this is relevant to the present discussion, I think, in the following way. If the foregoing picture is roughly correct, then if you ask, “as a matter of historical fact, what was the prevailing political theory that informed the founding generation’s conception of, say, property rights or individual liberty enshrined in the Bill of Rights?,” the empirically accurate and not completely satisfying answer would be something along the lines sketched above, that is, a uniquely American amalgam of several competing ideological strands. It’s not that there is no historical truth of the matter about what people thought, but rather that the factual record of what they thought is complex and diverse. Nor is it likely to be the case that there is a systematic overlapping consensus, to use Rawls’s terminology, among these diverse ideological perspectives. Thus, no single theoretical perspective can lay exclusive claim to informing the singular historically validated public meaning of the Constitution.
In this sense, I believe, there is no historical fact of the matter upon which public meaning originalism can hang its theoretical hat, because the political theory of the Constitution, then as now, was sharply contested. It follows, among other things, that Solum’s neat division of labor between semantic and normative originialism isn’t likely to hold up.