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
The recent exchange over originalism between Gerard Magliocca and Jack Balkin made me think again about what is distinctive about originalism. I’d like to suggest that originalism is a distinctive rhetorical strategy, one that somehow connects the proposed course of action, judicial or otherwise, with the revered framers of the Constitution. This is not just generic constitutional argument. It is a distinctive modality of constitutional interpretation. Its function is to connect our present course of action with the project of the framers. Originalist argument is any argument that aims to persuade you that this kind of continuity is possible.
Let me elaborate. Originalists do not think that their field is in crisis. They should. They are now fragmented on multiple methodological questions. Is the object of inquiry the original intentions of the drafters of the Constitution, the original semantic meaning of the language, or its original public meaning? Is the meaning that matters that subjectively held at the time of enactment or the objective meaning of the language? Is it the actual understanding of those who lived at the time, or that of a hypothetical reasonable interpreter? Can original meaning include standards and general principles, which may be understood at a high level of generality? Is the law appropriately based upon the entire set of original expectations about the application of constitutional principles, or some original meaning more narrowly construed? Is construction, the practice by which the interpreter exercises discretion to create specific applications of broad and vague terms, legitimate? Originalists are now on all sides of these debates. As a consequence, originalism has fragmented into an enormous number of different theories.
In most scholarly fields, fragmentation is not a problem. Most scholarly fields are fragmented. John Milton observed long ago that diversity of opinion is a healthy sign of intellectual life: “Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making.” In professional scholarship, the imperative of originality also doubtless plays a role. But the stated purpose of originalism is to produce unique and indisputable answers to legal questions in order to eliminate the possibility of judicial discretion. The proliferation of originalisms, and the certainty that none of them will vanquish its rivals, together with the concession in many of the sophisticated variants that interpretive discretion is unavoidable, make this enterprise a forlorn one. Multiple originalisms, then, are problematic for the same reason that multiple popes are problematic. Some writers have concluded that there is no longer any practical difference between originalism and nonoriginalism. Pamela Karlan analogizes originalism to a product whose name has come to refer to an entire category of products regardless of their source, like aspirin or cellophane. She argues that “it would be better if arguments over interpretive theory stopped trying to invoke this now-meaningless brand name.”
Yet the appeal to originalism has continuing power. The proliferation of originalisms is testimony to that power: everyone wants to get into the act.
The explanation is local. Originalism is a manifestation of American exceptionalism. Jamal Greene observes that in Canada and Australia, whose legal systems in many ways resemble that of the United States, originalism has had no rhetorical or legal traction: almost no one makes such arguments. Many originalists claim that interpretation just is recovery of original meaning, that nothing else could count as interpretation. They think that because they are Americans. Greene offers several possible explanations for this distinctive national tendency: America’s tendency to lionize its founders, our Constitution’s revolutionary origins, the originalists’ desire to constrain the Warren Court, the public nature of Supreme Court confirmations, assimilationist tendencies in American identity, and the fundamentalist elements of American religion. In a similar vein, Jack Balkin observes that faith in the Constitution involves a selective identification with the past: we take pride in our history because it is ours, because our forebears are part of the same political project that we are engaged in. Balkin notes that “originalist theories of interpretation may tend to piggyback on this identification,” even though the official justification for originalism is different, having to do with claims about legal legitimacy. Jed Rubenfeld observes that some degree of identification with the past is an indispensible part of national identity.
It is the identification, and not any promise of judicial constraint, that is really doing the work in originalism. That is why the debate among originalisms can never end. There are many different ways of identifying with the past, because there are so many different aspects of the past with which one can identify. Original intention (to the extent that it can persuasively be shown), original public contextual meaning, and original semantic meaning each have a plausible claim to constitute a link to the revered framers, and so each has a plausible claim upon our attention. Similar points could be made about each of the other factional divisions within originalism. Each of these approaches therefore can do useful rhetorical work, and will be conscripted when that is likely to help with a constitutional argument. There is no way to stop constitutional interpreters from using all the tools they find in the kit, and so none of these can be permanently elevated to exclusive authority. Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.
I do not intend to be pejorative when I say that originalist argument is a kind of constitutional rhetoric, connecting us with the past, constructing a narrative of national identity. Persuasive advocacy is an honorable undertaking. It can never be illegitimate to call your audience’s attention to something that they care about, or ought to care about, such as “your father would have been appalled by what you are proposing to do.”
Originalist argument can be an argument from authority, citing texts that lay down legal rules or from which such rules can be inferred, or they can describe commitments, laid down at the time of the framing and still attractive today. If the latter, then originalist argument must offer a story about the pertinent commitment. Where the commitment is a decision to break with the past in some way – and, I shall shortly argue, many constitutional commitments take this form – then a story must be told about what was wrong with that past. Then the argument must contend that the same kind of wrong is present in the instant case.
Understanding originalism in this way can explain some persistent puzzles. For example, originalists are committed to certain substantive results. Now that Raoul Berger has died, there is to my knowledge no originalist who does not think that originalism, properly understood, supports the result in Brown v. Board of Education. On the other hand, Jack Balkin is a heretic among originalists (and I’m going to be, too) because he thinks originalism supports Roe v. Wade. Yet Keith Whittington is obviously correct when he writes that “[I]nterpretive results are separate from interpretive methods.” He notes with regret the “tendency to push originalists to meet some judicial litmus test and to evaluate interpretive approaches by their ability to reach desired results in designated cases.” It is a matter of pull as well as push. Michael McConnell writes: “Such is the moral authority of [Brown v. Board of Education] that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited.” Robert Bork thinks that the need to account for the rightness of Brown is “a matter of psychological fact, if not logical necessity.” But the psychological fact might as well be a logical necessity. It is that inescapable. Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.
The attachment to these specific outcomes shows that originalism’s apparently consequence-insensitive methodology is embedded within a larger set of commitments in which originalism must be trimmed and modified to fit. In other words, theoretical tidiness will not do unless the theory as a whole is capable of inducing rhetorical uptake. The ultimate enterprise is not theoretical but rhetorical.
One may object that this understanding of originalism as a rhetorical strategy misrepresents originalism, which is in fact a distinctive set of theoretical claims, entirely unrelated to rhetorical considerations. But the question of definition is connected to the question of function. When I speak of a “chair,” you may think of an assembly of arms and legs, but a chair can also be defined functionally, as an artifact designed for a person to sit on it. That is why a beanbag chair is a chair. Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin.
Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite. Karlan is right that originalism has now become a generic name for a number of different products, but that does not mean that the name is meaningless. If I ask you for some cellophane, please do not hand me an acetylsalicylic acid tablet (that is, an aspirin). Originalism is a distinct modality of constitutional argument. It is not precedent. It is not prudence. It is not even constitutional structure. It is a useful name for a specific kind of argument with a specific kind of function. Posted
by Andrew Koppelman [link]