David Strauss on Originalism-- Round Two

Guest Blogger

David Strauss

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.
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