E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New Originalism and Living Constitutionalism: A Reconsideration
Stephen Griffin
In
this and the next few posts, I hope to set out my approach to the theory of
constitutional change and its implications for current debates on the new
originalism and the viability of the idea of the “living Constitution.” I am moved to do so by several considerations
(including that I am planning a book on the subject!). The other main consideration is that I feel I
should respond to scholars who have themselves responded to my prior work,
especially my article “Rebooting Originalism.” This article was was critical of the new
originalism, but was published before all of its features became fully
apparent (at least to me). So part of
this is by way of catching up with the new originalism and updating my critique. Lately it seems my name has come up a bit
more than usual, especially in a recent interesting exchange between Lawrence
Solum and Saul Cornell on the value of intellectual history and in Solum’s
article on constitutional construction in a highly useful symposium in the Fordham Law Review. Solum has been wonderful about mentioning my
work, particularly in a Clough Center symposium at Boston College just a few
months ago. So time to return the favor,
catch up on Solum’s crucially important and leading work, and set out my own
distinctive position in a systematic way.
In proceeding with reference to Solum’s work, by the way, I am not
trying to slight or ignore other significant work on original public meaning,
including Jack’s own seminal Living
Originalism. But I feel Solum is
pushing me in particular to clarify my position. So in what follows, I will be arranging my
argument around his recent work.
Another
reason is that I want to justify further some just-published, fairly harsh
remarks about original public meaning theory in my contribution “The Executive
Power” to the Oxford Handbook of the U.S.
Constitution. With respect to pro-executive
power scholarship since the 1990s, heavily reliant on original public meaning
theory, I wrote that it “involves a deliberately selective approach to the use
of historical evidence. It is not a
historicist theory and so does not involve the appropriate consideration of
historical context. The highly
questionable consequence of original public meaning methodology is to create an
alternate version of eighteenth-century history seemingly designed to bypass the
most insightful and learned scholarship on the Founding Period.” (citing in
particular the work of Gordon Wood and Jack Rakove) The distinction I draw here between interpretive
works that are “historicist” as opposed to “originalist” (using original public
meaning theory) is certainly not obvious.
I want to say more about this. Relatedly, it has become more evident to me that many scholars don’t see the lay of the land the way I do, specifically
with respect to the importance of theories of informal constitutional change to
other issues in constitutional theory, including issues of interpretation.
A
rough road map to these posts follows.
I will begin below by mildly disagreeing
with the standard picture Solum, Barnett and other scholars present of the way
the critique of originalism evolved in the 1980s and after. In the posts that follow, I will present my
objections to the leading current versions of both original public meaning
theory and living constitutionalism. I’ll
illustrate my objections to the former through an examination of pro-executive
power scholarship in the 1990s and after.
I will then broaden the contrast between both originalism and current
versions of living constitutionalism versus the conception I defend by
detailing what intellectual history, properly understood, can contribute to our
understanding of American constitutionalism.
Finally, lest the argument overload on the side of critique, I’ll advance
a positive argument that the best way to understand the living Constitution is
through theories of informal constitutional change. The positive side of my presentation also involves
a close look at the “difficulty of amendment” argument, an absolutely key point
of contention between contemporary theorists of originalism and their critics.
For
now, where to start? Solum often begins
by presenting a short history of the development of originalism and living
constitutionalism. Because I followed
the debates closely from the early 1980s onward, I want to separate myself
somewhat from his meant-to-be-standard account.
Although I do agree with some elements of his account, others I don’t. In particular, both Solum and Randy Barnett
tend to highlight the importance of Paul Brest’s early article critiquing “originalism,”
which, as they emphasize, was then a new term in constitutional theory. The idea is that Brest critiqued only early versions of originalism which relied on individual or collective “intentions”
as opposed to an objective search for original public meaning. There were some problems with Brest’s article
that I will highlight later. For instance, if you look
closely, it becomes apparent Brest was considering only the difficulties of
interpreting the abstract clauses of the Constitution, not the clauses that
have retained their meaning since the eighteenth century. But the point I really want to emphasize here
is that subsequent scholars often took Brest’s anti-intention argument to mean
that it was too difficult to determine constitutional meaning through
historical inquiry generally. If this
was indeed Brest’s point, he swept too broadly and subsequently scholarship
certainly did. This kind of critique of originalism meant not only that
approaches narrowly based on “intentions only” were infirm, but any attempt to
use relevant historical scholarship to illuminate the founding period.
In
other words, Brest’s argument wasn’t precise enough to distinguish between
approaches that assumed the existence of an elusive “collective” intention and
those that simply made reasonable inferences from reliable historical
evidence. No one is really against the
latter. So for my part, I never thought
Brest’s argument was decisive against originalism. The logical consequence of his argument was
to totally rule out any reliance at all on historical evidence. Some scholars actually made this argument by
way of following up on Brest – but again, this never struck me as plausible and
it was a false trail that no one today is interested in. Now, if you didn’t think Brest’s argument was decisive, you were unlikely (as I was) to be overly impressed with Justice
Scalia’s turn to original meaning.
Why? Because it was as reliant on
historical evidence as the “intentional” approach. Of course it was. The essence of contemporary originalism is the
privileging of evidence from the past in the determination of constitutional
meaning over evidence from the present.
As I and other scholars have argued, this means originalism has to come
to grips with the idea that there are better and worse ways to do history. So from my point of view, Scalia’s turn to original public meaning
was one of the most under motivated moves in recent constitutional theory. And here I obviously agree with those
scholars who don’t see much difference between the approaches in practical
terms. On the other hand – and this
point is crucial – Scalia’s move did
have very specific implications for arguments about executive power –
implications that pointed, as Scalia no doubt wished, in a pro-executive power
direction. As I will argue later, this is
because original public meaning approaches tend to downgrade evidence from the
Federal Convention, the source of some of the best evidence that the Framers
wanted to, in various ways, check the powerful executive they created almost
without intending to. But that’s for later
posts.