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Balkinization Symposiums: A Continuing List 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 Rahman sabeel.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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Originalism as a Topic versus Originalism as a Theory
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Monday, March 05, 2018
Originalism as a Topic versus Originalism as a Theory
JB I have said on a number of occasions that originalism as a theory of interpretation is not widely practiced outside the United States, and that even within the United States, state judges tend not to be originalists. Nevertheless, over the years, people have pointed out, quite correctly, that this judge or that judge in another country, say Canada, or Malaysia, has made arguments that look and sound pretty originalist. There are also a very sizeable number of originalist arguments in state constitutional decisions--these happen, for example, anytime a state court interprets a recent referendum or state constitutional amendment. So what is going on? My latest article, Arguing About the Constitution: The Topics in Constitutional Interpretation, helps clear things up. The article argues that when lawyers make constitutional arguments, they use stock forms and strategies of argument, which classical rhetoric calls topoi or topics. Most people in constitutional theory know about Philip Bobbitt's famous catalog of topics, which he called "modalities." Topics give lawyers ways of analyzing legal problems and arguing about how to resolve them (hence the title, "Arguing about the Constitution"). Standard topics rest on commonplaces about what makes a constitutional argument valid and persuasive. These commonplaces are incompletely theorized-- that is, people may agree with the basic premise (for example, that arguments from purpose are valid), but they may not have thought very much about why the premise itself is valid and once they start arguing about it, they might well have different views. We can think of originalism in two different ways. The first is as a general theory of constitutional interpretation. This is the view that the original meaning, original intention, or original understanding of the Constitution is fixed at the time of adoption, and that we should always interpret consistently with it. A second way to think of originalism is as a set of rhetorical topics, that is, a series of standard arguments that lawyers invoke whenever they think it will help them analyze a problem or persuade an audience. In American legal culture, these topics include arguments from text, purpose, structure, tradition, ethos, and so on. For each of these topics, there are special cases--or subtopics--that focus on adoption history. These topics include arguments from the original meaning of the text, from the original understanding of the adopters, from the original intention of the framers, from the ethos of the founders, from the values of the founders, from the political tradition of the founders, and so on. The key point is that you don't have to be committed to originalism as a general theory of interpretation to use any of these originalist-style topics, anymore than you have to be a textualist to occasionally make arguments from the text, or a structuralist to occasionally make arguments about structure. That's how topics work-- they are a grab bag of generally accepted kinds of arguments that lawyers can pull out, as the need arises, to analyze a situation and persuade their audience. Lawyers can make an argument from original understanding in one case and an "non-originalist" argument from consequences in the next; indeed, they can make both arguments in the very same case. Therefore, we should expect that lawyers and judges, both in the United States and in other countries, will use originalist-style topics on occasion. They will do so whenever they think that it makes their arguments more persuasive, just as they will avoid using originalist-style topics whenever they think this would undermine or embarrass their arguments. That is why it should not surprise us to see, for example, Canadian judges making arguments from original meaning, original intentions, or original expectations every now and then. That is because Canadian legal culture, like ours, is a common law culture, and in that culture, arguments from text, purpose, and tradition are valid topics for lawyers to employ in analyzing problems and persuading audiences. The same is true in the legal culture of many other countries, even if they are not common law jurisdictions. This fact does not commit either lawyers or judges in these countries to originalism as a general theory of interpretation. It does not commit them to the idea that, in general, one must always (or usually or normally) make arguments from original meaning, intention, or understanding to decide contested cases. Nor, more importantly, does it commit them to the proposition that all decisions must be consistent with original meaning, intention, or understanding. The distinction between originalism as topic and originalism as theory is obvious once one states it clearly, because otherwise one could not explain why William Brennan, John Paul Stevens, and a host of other nonoriginalist judges had no qualms about using originalist topics and making originalist arguments whenever it suited them. When there is very little precedent on a topic, for example in cases involving presidential impeachment, or, until recently, in cases involving the Second Amendment, lawyers will naturally reach for originalist topics, because those topics are likely to offer the most useful resources for making arguments. And when doctrine itself calls for an inquiry into historic practice, or applies a historical test--as the Supreme Court has decided in Seventh Amendment cases, and many lower courts have decided in Second Amendment cases--lawyers will make arguments about founding-era practice. They will do so not because they are committed to originalism as a general theory but because the relevant doctrinal test tells them to. And this is the whole point of the distinction between rhetorical topics and constitutional theories. Using originalist topics to make originalist arguments doesn't make you an originalist-- it doesn't mean that you generally subscribe to a theory of originalist interpretation-- any more than making arguments that don't concern original meaning-- for example, arguments about precedent or consequences--makes you a non-originalist. You made those arguments in a given case because you thought they would be most persuasive to your audience, but you will happily change your approach in the next case. There are very few legal cultures in which appeals to the history of adoption, to the original meaning of the text, to the purposes of those who founded the country (or the current regime), or to the cultural memory of events that produced the current constitution, are forbidden arguments. In most legal cultures, these are acceptable topics for legal argument. And that means that, in the right case, lawyers and judges will make these kinds of arguments, if in doing so they believe they can make their positions stronger or more persuasive. That is just what lawyers do. But it doesn't make them originalists from the standpoint of constitutional theory, nor does it mean that originalism as a theory has gained a new set of converts. Conversely, if one is an originalist as a matter of constitutional theory, like, say Justices Thomas, Gorsuch, or Scalia, there is absolutely no problem in making arguments that have nothing to do with originalism in the ordinary run of constitutional cases, as long as the arguments are otherwise consistent with the general theory. If one is a New Originalist, for example, one makes many different kinds of arguments in the zone of constitutional construction. One even makes historical arguments there. An originalist judge in this sense is not a judge who makes originalist arguments-- for that would have included Earl Warren and William Brennan-- but rather a judge who is committed to some form of originalism as a general theory of interpretation: a theory of interpretation that the judge is committed to apply in case after case, regardless of the consequences. Such an originalist judge should not be criticized for making arguments that do not sound in original meaning, intention or understanding. The judge can be criticized, however, for making these arguments when they conflict with their very own theory of originalism-- that is, when they argue for a position that has no basis in or conflicts with the original meaning, intention, or understanding of the Constitution. Recently, for example, Mike Ramsey argued that, although it appears likely that the Supreme Court's two originalist Justices will vote to overturn Abood in the recently argued Janus case, this result "appears very problematic from an originalist perspective." That is because there is little evidence that the original meaning of the First Amendment prevented something like agency fees. Randy Barnett has argued that an originalist judge like Justice Scalia should not have taken certain positions in commerce clause cases, and so on. The concern here is not that these Justices have failed (or will fail) to use originalist topics in their arguments; rather the objection is that the Justices are reaching results that are not consistent with their own versions of originalist theory. The distinction between topics and theory also helps us get a better handle on debates over the future of originalism in constitutional practice. The number of judges and Justices who are committed to originalism as a theory of interpretation may wax or wane depending on the vagaries of politics and judicial appointments. But the topics of originalist argument are likely to remain in American constitutional discourse no matter who appoints the judges. That might seem surprising. One might think that if Republicans appoint more originalist judges, we would be certain to see more originalist arguments in briefs and opinions. That may well be true. But one of the most interesting features of Frank Cross's study of originalism in the twentieth century is that originalist topics in judicial opinions begin to increase during the Warren Court years. The reason for this is simple. Appeals to origins are a means of revolutionary change, and originalist arguments help judges get around existing bodies of precedent. The Warren Court Justices used originalist topics and made originalist arguments because they wanted to sweep away existing decisions and replace them with new ideas that they claimed were already in the American legal tradition. As long as originalism is a valuable method for overcoming precedent, we should expect originalist arguments to stick around, no matter how many originalist theorists grace the federal courts. Posted 9:50 AM by JB [link]
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. 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Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. 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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |