Balkinization  

Wednesday, November 30, 2011

Is Constitutional Theory Like Toothpaste?

JB

Gerard's last post helpfully clarifies our disagreement. He writes: "there is considerable value in retaining a sharp distinction between constitutional theories. . . It just seems to me that once anything can be labelled as originalist, then that term is no longer useful and may just obscure the truth."

I agree with Gerard about the importance of conceptual clarity. But I do not agree that his diagnosis of our current situation is accurate. I do not agree that currently *anything* can be labeled as originalist. And I certainly do not agree that unless we adopt Gerard's definition, anything can be labelled originalist.

As I noted before, my objection to Gerard's stipulated definition is that it seems arbitrary and unconnected to any reason why one would want to actually *be* an originalist.

By contrast, Larry Solum has offered an account of the basic assumptions behind originalist theories that seems entirely workable to me, and has the additional virtue of including all originalists and excluding important nonoriginalists.

Solum argues that all originalist theories make three basic claims:

1. Something (whether we call it original meaning, original intentions, or original understandings) is fixed at the time of adoption or amendment of a constitution;

2. What is fixed cannot be altered except through Article V amendment; and

3. What is fixed matters to correct constitutional interpretation.

This definition comfortably includes all of the various schools of originalism existing today. Moreover, it excludes two of the most prominent nonoriginalists, Ronald Dworkin and David Strauss. Dworkin's interpretive theory, which balances fit and justification, does not accept conditions 2 or 3. It also excludes Strauss's common law constitutionalism, which identifies the Constitution not with its text but with what results from the application of common law methods. The text is merely a focal point for political coordination. It is therefore at least theoretically possible that parts of the text could be disregarded over time (thus violating condition 2); moreover, Strauss believes that certain constitutional amendments are practically irrelevant to interpretation (thus violating condition 3).

Solum's definition also has the virtue of connecting what originalism is to the different theoretical justifications for originalism. Adopting his thesis makes sense if you believe that originalism is required by the rule of law (Barnett, me), by the benefits of supermajority procedures (McGinnis and Rappaport), as a framework for politics and constitutional construction (me), as a requirement of democratic legitimacy (Whittington, Bork, me), or as a basis for judicial restraint (Bork, Scalia, and many others).

By contrast, Gerard's stipulation about who is engaged in originalist interpretation not only leaves people like me and Randy Barnett out of the originalist camp, it also, interestingly, leaves out Akhil Amar, Michael McConnell (because of his theory of constitutional evolution through tradition), Steve Calabresi, and a wide variety of originalists who have theories of acceptable non-originalist precedent.

In my last post, I asked Gerard why, as a nonoriginalist, he cares about what is "really" originalist. His answer leads me to my second major concern. Gerard is worried that if he or other non-originalists do not step in and declare what originalism really is, then originalism will commit "genericide."

But this simply leads me to ask, why should nonorignalists care if originalism commits genericide, given that it's a theory they oppose?

Imagine the following conversation between two rabbis:

Rabbi Levine: Oy! I'm so worried about Christianity. There are so many different sects these days! Who can tell who is really a Christian? And if anybody can be a Christian, this makes it very difficult for us to distinguish ourselves from the non-Jews.

Rabbi Cohen: I agree. It's literally a shonda fur de goyim! Hey, I have an idea. Let's stipulate that to be a *real* Christian, you have to require communion as a sacrament *and* you have to believe that the wafer and wine actually turn into the real body and blood of Christ. That is, to be a real Christian, you have to believe that you are actually eating Jesus Christ! Anything else isn't really Christianity.

Rabbi Levine: What a great idea! That will bring conceptual clarity to Christianity once and for all. Boy, I'm really glad you did this. If we as rabbis don't bring some order to Christian theology, the next thing you know there will be fifty more versions of Congregationalism by morning.

Do the Rabbis in this dialog really care about the health or intellectual coherence of Christianity? No. They are worried about the ability to distinguish themselves from the proliferation of Christian sects. And so they choose a definition of Christianity which they think is pretty flaky.

Gerard's post leads me to wonder if perhaps this is why some nonoriginalists might want clear divisions between themselves and originalism. Nonoriginalists, I suspect, don't merely want a clear cut distinction between orignialism and nonoriginalism. They want a clear cut version of originalism that they think they can beat. But if originalism mutates into a version that is both highly plausible and attractive for many people, well, that's a problem. So it's important that it not be allowed to become that.

The comparison to genericide reveals that what seems to be at stake here is not intellectual development and meeting the best versions of objections to your position. Rather, it is protecting your brand and defining your opponent in ways that you can more easily refute.

But constitutional theories, like other theories, are *not* like toothpaste brands that have to be protected by law from certain forms of marketplace competition. They are supposed to be ideas that develop over time through the thrust and parry of reasoned argument. The notion that we have to maintain clear divisions between originalism and nonoriginalism in order to do constitutional theory sounds to me like a demand that neither theory evolve or learn anything from the other. This does not benefit intellectual debate in the long run.

I have just published a book, Living Originalism, from Harvard University Press, which argues that the best versions of originalism and living constitutionalism are compatible, and that to the extent they are not compatible, they are not very good theories of constitutional interpretation. Thus, in this book I am critical both of originalists and nonoriginalists. If genericide is our major concern, then my intellectual project should simply be prohibited. Not surprisingly, I disagree.

Moreover, I think that the work of synthesis assists the development of constitutional theory far more than simply insisting that people pick a side. Rather than simply stipulating who is in or not in the originalist camp, I think it is better to directly encounter and respond to people's actual arguments. That is, instead of protecting one's turf or brand, I think it is better to actually do constitutional theory.

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