III. Originalism and the Original Constitution

If, following the previous installment of my response, I am right that central aspects of our constitutionalism are not, as is often assumed, inexorable byproducts of the Constitution, but instead are an optional set of practices that have grown up around it, then—as several readers note—that surely holds implications for debates over constitutional originalism. But it is not obvious what those implications are, and, as both Jack Balkin and William Baude indicate, they could vary (and perhaps dramatically) depending upon which kind of originalist one is. Through constructive engagement with my work, each of them identifies different reasons why (at least some) forms of originalism are compatible with my account of the Founding. Even if one accepts their well-reasoned arguments, though, I think many originalists would have difficulty accepting some of what Balkin and Baude point to, at least not without revising longstanding commitments.

Balkin concedes that originalists’ unifying precept—that the original meaning of the Constitution was fixed at the time of adoption—“presumes a particular vision of what the Constitution is and how it operates” and he seems persuaded that this vision was not entrenched in the earliest years of the document’s existence. This fact, though, presents little concern for most originalists, he argues, since they can still believe that the purpose of interpretation is to recover original meaning even if the supporting theory was not in place at the Founding. This is partly because we are not beholden to the intentions or expectations of the Founding generation and partly because it can take time to understand the nature of what people have created. But, according to Balkin, it really comes down to a historicist argument—one the initially focuses on interpretive method but eventually spills over to the fixation thesis itself. As he write, originalists argue for this thesis on the basis of “a historical practice of reading the Constitution.” That is, originalists treat constitutional meaning as fixed not because the Constitution demands it, or because it is in the nature of interpretation, but because “of a living interpretive tradition.” If I am reading Balkin correctly, he seems to agree that originalism is a non-necessary way of thinking about the Constitution that only applies “because of the history of a particular set of rhetorical practices organized around American law and American constitutions.” Had a different set of practices emerged from the 1790s or later, a wholly different way of thinking about the Constitution might have proved natural. In this regard, originalism is not a logical byproduct of the kind of thing that the Constitution is. Instead, originalism is the logical byproduct of a historically-contingent way of imagining and arguing about the Constitution. Balkin’s historicist account indeed compliments my portrayal of the Founding.

But I suspect most originalists would have difficulty accepting Balkin’s description. While originalists are often fond of saying that their theory is based on certain normative commitments—to popular sovereignty, to supermajoritarian rule, to particular conceptions of justice, to judicial constraint—most forms of originalism really begin as theories of what the Constitution itself actually is. Whereas other theories get caught up in what the Constitution ought to be, originalism instead respects the Constitution for what it is. As Baude suggests, effectively summarizing what many originalists think, it is “just in the nature of things that writing down constitutional principles would result in a fixed Constitution that should be interpreted using originalism.” Accepting the historicist point would mean recognizing that it is not, in fact, in the “nature of things” that writing constitutions down results in a particular kind of fixity; it would mean recognizing that it is only because of a contingent set of constitutional habits and practices that we find that train of reasoning logical to begin with. This is where the Founding generation comes in. Irrespective of whether we are beholden to their specific intentions or expectations, we might nonetheless conceive of the Constitution in a particular way, not because of anything essential to the Constitution, but because of practices they contingently initiated. If nothing about the Constitution ever required us to treat it as distinctively written, and thus fixed in a certain way, if we only do so because of a non-essential set of habituated practices, then why must we continue to talk and think that way? Constitutional fidelity would not seemingly require it.

Balkin seems to agree that we don’t have to. Nothing absolutely necessitates our practices, he suggests. Their legitimacy instead derives from the fact that they are part of our living tradition that we sanction through continued usage.

This could be where Balkin and many other originalists might part ways. Ever since he unveiled his pathbreaking theory of living originalism, Balkin tethered originalism to a narrative of redemption, to an account of how the Constitution could be redeemed over time as our law. In this regard, his arguments in this symposium strike me as as a logical extension of his longstanding commitments. But most other originalists, by contrast, remain committed to a narrative of restoration, to an account of how the Constitution can be restored to what it has always been. These originalists would, it seems, be much less eager, let alone willing, to accept Balkin’s historicist account of the origins and development of constitutional practice. I imagine they would still insist that the Constitution is a text because it’s a text and that it’s fixed in a particular way because that’s the only way a constitution could be fixed. The Constitution just is these things no matter what anybody thinks about it. If what I have argued in my book is correct, then I would think these originalists would either have to explain why their particular understanding of constitutional text and fixity automatically inhered in the Constitution from the start (regardless of what practices or assumptions initially surrounded it) or they would have to offer a new set of justifications explaining why the Constitution today should be treated as a particular kind of object with a particular set of attributes even if, in fact, it was never necessary to see it that way at all.

In his characteristically sharp and insightful response, Baude adopts a different perspective, specifically considering if my historical account poses problems for original law originalism—the version of the theory that he and Stephen Sachs have pioneered. Full answers will have to wait for more detailed work, Baude reports, but in the meantime, he gives us plenty to chew on. He poses a series of questions aimed at identifying whether the deep constitutional contestation I illustrate at the Founding in fact undermines the very concept of original law. A great deal hangs on what we mean by law here. On the one hand, I am convinced that the disagreements that followed ratification were fundamental in nature, cutting to the very core of the Constitution. But, as I say in my Introduction, these disagreements always fell under the accepted authority of the Constitution. Everybody acknowledged that, whatever else was true, it was supreme law. But law seems to pick out something more specific in Baude’s theory, not just a source of law but a set of methods or principles for deciphering and elaborating it. I argue that few subjects elicited more confusion or disagreement at the Founding than interpretive methods, but I wonder if Baude and I are talking about the same thing when we reference established rules. And if we are picking out the same thing, perhaps other accepted legal methods, such as Madison’s account of “liquidation” that Baude has so carefully delineated, can explain how certain features of the constitutional landscape became settled over time, and thus how original law originalism and my historical narrative can work in tandem. Bernadette Meyler raises this exact possibility, wondering if my book doesn’t offer, as she puts it, “a larger kind of liquidation narrative.” Perhaps debates in the 1790s, she suggests, liquidated the Constitution itself, transforming it from an inchoate object into a fixed, written text. While, in my book, I had only hoped to suggest that, by 1796, Americans’ distinctive conception of constitutional fixity had emerged, not that all fundamental issues had been settled, nonetheless Meyler’s interpretation could indeed support Baude’s conception of originalism which—as he argues in his sophisticated new article—can and should be wedded to Madison’s idea of liquidation.

I am still digesting Baude’s interesting argument. But while I very much take his and Meyler’s point about it, I wonder about two things. First, how widely accepted was the idea of liquidation beyond Madison? More critically, how much acceptance is needed to make it part of the Framers’ law? Second, would most other originalists take liquidation on board? My hunch is that many of them would balk at the prospect, not least because incorporating it would require abandoning certain commitments. Many of them remain wary of adopting the idea of construction after all, or at least its more radical possibilities.

So it could well be that Balkin’s and Baude’s versions of originalism (as Balkin indicates in his own way) are compatible with my account of the Founding while other forms of the theory are not. Regardless, I eagerly await cashing Baude’s promissory note to know for sure.