Friday, October 19, 2018

The Invention of the Archival Constitution

Guest Blogger

Alison L. LaCroix

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

            Among the many achievements of Jonathan Gienapp’s Second Creation is the book’s elegant and decisive dismantling of many tidy just-so stories that constitutional law scholars tend to tell themselves about the period between 1787 and 1796.

Statecrafters are not settling down to the business of implementing the Constitution, passing framework statutes for the federal courts, or congratulating themselves on the creation of newly enshrined principles of judicial review.  Operationally significant questions are not only omnipresent, they flare up and quickly assume existential proportions: can the Senate demand a role in removing heads of departments, or is that power constitutionally committed to the president alone?  If the president signs a treaty and the Senate ratifies it, can the House of Representatives decline to execute it, or must Congress legislate accordingly?  Ought the Constitution be amended – and if so, should those amendments be interleaved among the relevant provisions of the text, or should they be appended to the end of the document?  Confusion and discord reign. 

As Gienapp illustrates, for these and other foundational questions in the 1790s, there were no right answers waiting to be discovered.  Even with the Constitution in hand, the members of the founding generation had to invent solutions.  The Constitution was not self executing.  Continuous acts of creation were required to ignite the engine that would in turn drive the “machine that would go of itself,” to borrow the title of Michael Kammen’s prizewinning book from 1986. 

Indeed, even the theoretical undercarriage of the machine needed to be developed.  Did the U.S. Constitution take after its unwritten ancestor, the British constitution, and carry within it the same mystical combination of fixity and perpetual change that ran from Magna Carta of 1215 through the Glorious Revolution of 1688 and beyond?  Or was America’s Constitution something different – a sacred text that lived in an archive while setting the fundamental ground rules for the polity?  Over the course of the 1790s, Gienapp argues, the Constitution became the latter: “an authoritative text circumscribed in historical time” (4).  But, as The Second Creation convincingly demonstrates, such a conception did not inhere in the document itself.  On the contrary, the 1790s witnessed another act of creation that was as powerful as the drafting and ratification of the 1780s: the constitution of the Constitution.  The interpretive modes and the ontological theory that came to govern what we now term “constitutional thought” were themselves artifacts of debates that dominated the immediate post-founding era.

Perhaps the greatest shock that Gienapp presents to the conventional story of early U.S. constitutional history steals upon the reader quietly, in the form of an absence.  It is the non-presence of the Supreme Court.  Chief Justice John Jay appears – not in his scarlet judicial robes, but as the negotiator of the controversial treaty with Great Britain that brings the House into collision with the Senate and President Washington.  John Marshall, the lanky fourth chief justice, slopes into frame for only two brief cameos: a foreshadowing reference to Marbury v. Madison (1803) and one statement in Virginia’s ratifying convention in 1788.  Personnel aside, the Court’s jurisdiction under Article III is discussed over the course of a few pages.  Many Federalist essays are analyzed, but not Federalist No. 78, in which Alexander Hamilton described the “federal judicature” as “an intermediate body between the people and the legislature” that could “keep the latter within the limits assigned to their authority.”
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Thursday, October 18, 2018

Training Academies and the Rule of Law

Richard Primus

Here's a report recently out in The New York Times about a training academy for law clerks, run by the Heritage Foundation:

Let’s assume that what the Heritage Foundation is teaching law clerks is a set of legitimate skills and knowledge bases for the making of legal decisions.  If so, then it’s perfectly appropriate for clerks and judges who learn about those skills and knowledge bases to apply them when making legal decisions. 

But according to the report in The New York Times, the clerks who attend Heritage’s training academy promise not to apply the skills they learn and the knowledge bases they acquire in any way that would be inconsistent with the mission or interests of the Heritage Foundation.  That is, they are promising to ignore the import of those skills and knowledge bases when those skills and knowledge bases, as applied to particular cases, would point toward results contrary to the mission and interests of a specific private organization.  To be concrete: if Heritage teaches law clerks a method of interpretation of enacted legal texts, and a clerk applying that method in a particular case would conclude that the right result in the case is a result that the Heritage Foundation would see as contrary to its own mission and interests, the clerk, to keep his or her promise, would have to decline to apply that method of textual interpretation that he or she learned at the training academy.

So if the report in the Times is accurate, and if the clerks keep their promises, then one of three things must be true, as follows:

Possibility 1: Over a certain domain of cases, the clerks will knowingly refuse to write bench memos reaching legal conclusions that follow from their best good faith interpretations of the law, as understood in light of their legal learning (including what they learned from the Heritage Foundation).

Possibility 2: The clerks will never be in the position described in Possibility 1, because the clerks’ best good faith interpretations of the law (including what they learned from the Heritage Foundation) will always produce results consistent with the mission and interests of the Heritage Foundation.

Possibility 3: The clerks will never be in the position described in Possibility 1, even though the clerks’ best good faith interpretations of the law will sometimes produce results inconsistent with the mission and interests of the Heritage Foundation, because in all cases where the clerks’ best good faith interpretations of the law produce results inconsistent with the mission and interests of the Heritage Foundation, the clerks would reach those results whether or not they applied skills and knowledge bases learned at the training academy.  (In other words, in cases where the clerks might think the law goes against Heritage’s interests if they analyzed the law without the benefit of the learning acquired at the training academy, applying the learning from the training academy would not make any difference to the clerk’s view of the proper outcome.)

Possibility 2 seems unlikely.  It would be odd for any private party to have a mission and a set of interests that perfectly cohere with all existing law, unless that private party defined its mission and interests solely as the mission to see that the law is correctly applied.  And if that were the full extent of Heritage’s understanding of its mission and interests, it wouldn’t need the clerks who attend its academy to promise anything.  Everything that the promise Heritage extracts covers would already be covered by the law clerk’s obligation to act in good faith to help his or her judge get the law right.  (One might say that it would be covered by a different promise that every law clerk makes on the first day of the job: the one in which he or she swears to uphold the Constitution.)  To be sure, Possibility 2 doesn’t require that the law actually cohere fully with Heritage’s interests: it requires only that the law clerks think it does.  But if it doesn’t actually and the law clerks think it always does, well, that’s a problem, too.

It’s pretty clear that the Heritage Foundation doesn’t believe in Possibility 3.  An organization that believed that applying the skills taught at the training academy would have no tendency to produce more decisions that were to its own liking would not invest in the training academy in the first place.

The uncomfortable inference is that we may be left with Possibility 1.  Which is uncomfortable because Possibility 1 is a subversion of the rule of law.

Evolving into the Fixed Constitution

Guest Blogger

Christina Mulligan

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

If the public’s understanding of the Constitution’s nature was wildly unsettled during ratification, what would that mean for constitutional interpretation today? Jonathan Gienapp explores this possibility in The Second Creation, arguing that the essential character of the U.S. Constitution was initially undetermined. Many of the former colonists (consciously or unconsciously) held preconceptions about how constitutions worked due to their experiences with the largely-unwritten British constitution. Yet, the U.S. Constitution was a different sort of creature, set forth at once in a single, written document. Although American constitutional practice quickly became document-centered, expectations about how the Constitution would function were initially more varied.

Gienapp’s historical point is straightforward, and yet his argument that the Constitution was not initially considered “fixed” is almost difficult to grasp because presumptions of constitutional fixity are so strong today. Not only today’s originalists, but also living constitutionalists, understand the Constitution as “a written, discrete, inert, historically conceived object composed of words, contained on parchment, and enforced by judges.” (p.326) Our values are not our constitution; our norms and historical practice are not our constitution. (While parties certainly cry foul when norms are violated, they usually still easily distinguish between a norm violation and a constitutional one.) The document that we call the Constitution is our constitution. Even for most living constitutionalists, if constitutional law changes over time, it is still generally conceived of doing so because the document that is the Constitution has been or can be reinterpreted or reconceived in light of changed circumstances or values. Practice and expectations alone that are wholly external to the document can’t become the Constitution, no matter how important or universal they become.

Gienapp’s thesis thus raises the striking question of whether originalism would invite Americans to engage in a more British-style constitutional practice in the present. This is an especially curious possibility for present-day American practitioners and scholars, largely because very few are deeply familiar with the functioning of the British constitution in the late 1700s.

There are certainly some tempting responses to the concern that the American constitution might extend beyond the four corners of the written Constitution. For one, the fact that the first Congresses came to rely so heavily on document-based arguments so quickly suggests that most everyone had been committed to constitutional fixity all along, consciously or unconsciously. But that reality doesn’t prevent The Second Creation from calling into focus a veritable “Chevron step zero” of American constitutional interpretation: the question whether we must necessarily situate constitutional inquiries in the written Constitution at all, or whether we may (or must) resort to other modes of analysis that would have been acceptable (or required) under the British constitution.

An originalist might approach this threshold question in the same manner that they would approach a more particular application of the Constitution: by first looking to how the founding-era public would have understood the country’s proposed plan of government. As I’ve argued in Diverse Originalism, originalism needs to consider how the entirety of the founding-era public would have understood the Constitution, even and especially when there was a diversity of views among different demographic populations. If present-day interpreters want to understand what sort of government was created at ratification, they need to understand what the public believed was being ratified. If a sizeable percentage of the public (including, according to Gienapp, James Madison and many other federalists) initially presumed the Constitution would function like the British constitution, then a British-style constitutional system is among the possible candidates for the kind of government the public was asked to approve. Of course, the antifederalists presented another understanding of the government’s essential character — one more text-centric, which has more or less prevailed over time.

Rather than evaluate which perspective was more justified, it may be more useful to consider what it would even mean to take seriously the possibility that America’s Constitution (or constitution) would have the flexibility of Britain’s. Gienapp describes the British constitution as “written compacts, like Magna Carta,” and other “authoritative” texts, “blended seamlessly into a complex, dynamic whole defined as much by custom, history, and constitutional practice.” (p. 22) “The British constitution was fixed and constant, yet because it was inherently customary and discoverable through usage and acquiescence, it was perpetually changing.” (p. 34).

Gienapp’s description of the British constitution describes a system that is changeable but still bound by custom, history, and practice, as well as text. And when we look forward in time from ratification to the Congressional debates about executive branch removal, the Bank of the United States, and the Jay Treaty, we see how America’s custom and practice concerning our own constitution developed to situate constitutional questions within the written Constitution, arguing that even wholly unwritten powers or limitations were implied by the text itself. That reality is not only our custom and practice, but now is also our history. Under the British constitution’s own terms, it can be thought of as having evolved into the American constitutional system.

Entertaining the notion of a British-turned-American system might produce some anxiety among present-day interpreters who are committed to the fixed Constitution. If once the small-c constitution turned into the capital-C Constitution, then perhaps it could change again. But there are two reasons not to worry that America’s early relationship with the British constitution will catalyze unmoored constitutional change.

First, the possibility of future change is, descriptively, no more likely than it would be if the fixed constitutional approach had been absolute from the beginning. Maintaining fidelity to a particular constitutional practice is always work. Polarization, cultural shifts, and even apathy can change a constitution in practice. Regardless of the certainty and legitimacy of its origins, for a government to function as a matter of fact, it also must be accepted as legitimate in the present. As Edmund Burke said of the British constitution, “Our constitution is . . . a choice, not of one day, or one set of people, not a tumultuary and giddy choice, it is a deliberate election of the ages and generations.” (p. 29) Regardless of how any particular constitution was created, fidelity to that constitution is an ongoing choice. If few people choose to be faithful to it, a constitution will mutate or decay. That remains true of the American Constitution, whether it came into being fully formed or matured shortly after ratification.

Second, even though constitutional practice can change, texts have a way of drawing people back to them — at least when they purport to instantiate commitments to important values, such as liberty, equality, and wise governance. As H. Jefferson Powell explained, “Just as in scriptural religion, the most elaborate and established theological system can be challenged by the call ad fontes (‘back to the sources’); so in American constitutional law it is also possible to go back to the text, to challenge what currently is[,] in the name of what once was written.” H. Jefferson Powell, Parchment Matters: A Meditation on the Constitution as Text, 71 Iowa L. Rev. 1427, 1433 (1986). Even Madison eventually agreed that enumerating rights would “impress some degree of respect for them, to establish public opinion in their favor, to rouse the attention of the whole community. . . . Political truths declared in a solemn manner acquire by degrees the character of fundamental maxims of free Government, [especially] as they become incorporated into the national sentiment.” (p. 175-176)

In Gienapp’s epilogue, he writes that it was “a contingent set of practices” which made it possible to imagine the Constitution as a fixed document. “Once it is appreciated that an entirely optional set of norms made this conception of the Constitution, . . . it will cease to make sense to search for any essential set of constitutional practices that could have been hardwired into the Constitution.” (p. 334) Yet, while it is certainly conceivable that British constitutionalism could have prevailed, or some other constitutive practice, the reality that American practice shifted so quickly to arguing with text suggests that each possibility didn’t have an equal chance of success. The draw of the text was simply too powerful to ignore. A fixed Constitution ultimately may not have been absolutely necessary, but it turns out that it was decidedly convenient.

Christina Mulligan is Professor of Law at Brooklyn Law School. You can reach her by e-mail at cmulligan at

Originalism as Performed by the Supreme Court

Mark Tushnet

Eric Segall has an interesting post on "Originalism in the Classroom?" I thought it might be interesting to try to figure out how one might teach originalism in a standard doctrinal course on the First Amendment. My text is Justice Alito’s discussion of the respondent union’s “originalist defense” in the recent Janus decision. Here’s what Justice Alito says. (“Originalist defense” is a quotation from Justice Alito. It should be clear when I’m quoting from the opinion and when I'm using scare quotes around my own formulations.)

(1) “[W]e doubt that the Union—or its members—actually want us to hold that public employees have ‘no [free speech] rights.’” The reason: other unions in other cases have argued for broad First Amendment rights for public employees. How this is relevant to an originalist argument is, to say the least, unclear.

(2) “Taking away free speech protection for public employees would mean overturning decades of landmark precedent.” So, perhaps this shows that Justice Alito is a faint-hearted originalist. Strictly speaking, originalism as such shouldn’t care about the consequences of following the historical materials where they lead. But, perhaps there is some “consequences matter” constraint on originalism. The usual example is paper money. One might expect, then, a discussion of why these consequences of originalism are more significant than other consequences, for example, in Heller.

(3) “Respondents presumably want none of this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits them—to retain the part of Abood that they like. We will not engage in this halfway originalism.” The “presumably” here is a giveaway – and then “halfway originalism” is simply chutzpah.

(4) The opinion then turns to the asserted absence of “persuasive founding-era evidence that public employees were understood to lack free speech protections.” It notes that the union did identify early “restrictions on federal employees’ activities,” but says that “most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech.” Again, the “most” is a giveaway.

The opinion identifies two early actions – in 1801 and 1806 – that did involve restrictions on government employee speech. But, it continues, “those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. “ Well, not necessarily – the “at most” is a rhetorical move. Maybe the examples are illustrations of a more general principle to which the founding generation was committed. We might say the same about the "business dealings" point as well. (In a more extended treatment of First Amendment originalism, I would point out that this is how the Court’s current understanding of the First Amendment as standing for a principle against government suppression of views with which it disagrees can best be defended on originalist grounds – with particular examples used to illustrate the presence of an as-yet-unstated general principle.)

(5) “Ultimately, the Union relies, not on founding-era evidence, but on dictum from a 1983 opinion of this Court stating that, ‘[f]or most of th[e 20th] century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.’ Even on its own terms, this dictum about 20th-century views does not purport to describe how the First Amendment was understood in 1791.” This, I think, can fairly be called dishonest. It can’t be seriously contended that, from 1791 through the early part of the 20th century, there was general agreement that public employees had robust First Amendment rights, and then, all of a sudden, things changed.

 (6)  “We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees.” This is sort of a form of original-intended-applications-originalism, though exactly how it supports the conclusion that public employees were understood to have First Amendment rights is unclear. Justice Alito continues, “The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.” The attached footnote observes that “at common law, ‘collective bargaining was unlawful.’” One might infer from this, were it relevant, that of course public employees who engaged in an unlawful activity couldn’t have been thought to have First Amendment rights.

More generally, though, the “astound those who framed the Bill of Rights” argument raises one of the most general questions about originalism (which we might attach to the observation that statutes superseded the common-law rule cited in the footnote): Legal and social circumstances have changed so much from 1791 (or, strictly speaking with respect to Janus, 1868) that we can’t infer from what was generally understood then what the First Amendment should mean now. That might be a good reason for rejecting the union’s broad claim, but – as critics of originalism have regularly contended – it would also raise questions about the precise scope of the “things have changed so much” reason for looking to things other than the original understanding. (It’s an easy exercise to formulate that question with respect to Heller, for example.)

(7) Finally, “prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “‘sinful and tyrannical,’” and others expressed similar views.” The citation is to Thomas Jefferson and the Virginia Bill for Establishing Religious Freedom, and the attached footnotes refer to discussions of the religious-oath clause. Justice Alito’s “such beliefs” assimilates views about coercion with respect to religious beliefs with views about coercion with respect to political ones. That assimilation is, on its face, problematic in light of what we know generally about religion – and politics – in the founding era. At the very least, an originalist ought to present original-materials evidence that the obvious distinction was not relevant in public understandings. (Justice Alito also refers to views held by “prominent members,” though with no indication of whether those views were the same as the public understanding of the relevant terms.)

Overall, then, I would say that academic originalists ought to be embarrassed about the Janus opinion’s performance of originalism. The acerbic conclusion to Philip Kirland’s 1963 Harvard Law Review Foreword of 1963 comes to mind. Kurland referred to “the wall plaque of frontier times: ‘Don’t shoot the piano player. He’s doing his best.’ It is still possible, however, to wish that he would stick to the piano and not try to be a one-man band. It is too much to ask that he take piano lessons.”

On the other hand, working through all this does suggest to me that teaching originalism via Janus might be quite instructive. What Justice Alito’s opinion shows is that the originalist material can be, and is, manipulated in exactly the same way that precedent is manipulated – by treating specific examples as confined to their facts rather than as illustrations of a general principle (the 1801 and 1806 material), and, on the flip side, treating specific examples as illustrations of a general principle (the assimilation of religion and politics). That’s pedagogically useful – though I don’t think it’s the lesson that academic originalists would like students to learn.

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