Friday, February 03, 2006

In defense of underlying principles


Randy Barnett's recent Taft Lecture, available here, is a good short introduction to his contributions to constitutional theory. It is couched as a criticism of Justice Scalia, but in fact it's really an excellent summary of the main themes of Randy's book, Restoring the Lost Constitution. I was particularly interested in it because Randy offers a new foil to distinguish his theory of original meaning originalism. He calls it the "underlying principles" approach, which in his words, "discern[s] from the text the deeper underlying principles that underlie is particular injunctions." He claims that this is a very widespread approach, which, indeed, it is. More controversially, he also claims that adherents of this approach "appeal to these underlying principles to limit the scope of the text or ignore it altogether," while his approach is presumably more faithful to the constitutional text.

Randy does not identify any particular adherents of this underlying principles approach, although he claims that it is very common. He might well have picked me as his foil, for as I have argued here, the combination of the original meaning of the constitutional text plus underlying principles is a pretty fair first approximation of my normative approach to constitutional interpretation. (As opposed to my positive theories of how the Constitution actually changes over time).

So I want to use this opportunity to defend what I shall call the "text and principles" approach from Randy's criticism. But I want to do more than this. I want to suggest that Randy's own approach is actually quite close to if not indistinguishable from the "text and principles" approach he seems to criticize. That is, if Randy believes that I am now an originalist, I want to claim that he is actually an adherent of the text and principles approach, or, at the very least he should be.

I begin by considering why Randy thinks the underlying principles approach is objectionable. He offers three reasons:

First, as his account suggests, he is worried that an appeal to underlying principles will be used "to limit the scope of the text or ignore it altogether."

Second, he argues that "because the underlying principles are not themselves in writing and are often far from incontestable, it is hard to be sure they are not just the preference of whoever is doing the 'interpreting.'"

Third, he argues that "since the underlying principles, even if correct, are usually very abstract, how they are to be applied in particular cases can be very uncertain." Thus, "if pretty much anyone can play this game to reach virtually any result, then the Constitution is no longer the source of law for law-makers. Instead it is those in the courts who discern the underlying principles who are the real arbiters of government power."

These are all valid concerns. But it is hardly clear that an appeal to underlying principles per se creates any of these dangers, or, to put the point more bluntly, that it creates any of these dangers more than the direct appeal to the original meaning of the text, particularly where the text is open-ended as the privileges or immunities clause and the Ninth Amendment are. Indeed, as I shall argue, the point of appealing to underlying principles is that they help articulate and limit the discretion of judges and legal decisionmakers when the relatively abstract provisions of the text do not provide much guidance.

In fact, Randy has no objection to the use of underlying principles to the extent that "we often do need to consider the principles underlying the text to make sense of it." His real concern is that the principles will displace the text. But for this displacement to occur we have to know what the text really means independent from the principles that it promotes. Sometimes that is easy to do when the text is relatively clear cut. The Framers said that the President must be 35, and perhaps the underlying principle is that he or she be relatively mature. However, the specific age limit controls, and it may not be displaced by the more general principle it enacts.

But when we move to the more abstract and general features of the constitutional text, like the Equal Protection Clause or the guarantee of freedom of speech-- to say nothing of the Privileges or Immunities Clause, or the Ninth Amendment-- it is much harder to see when the underlying principles are displacing the text. Indeed, we need such principles in order to understand how to apply the text to concrete circumstances.

Let me take two examples that Randy offers. First, he asks whether restrictions on paid political advertisements (issue ads) within 60 days of a federal election violate the first amendment. He seems to think that underlying principles would justify the restriction while the original meaning of the text of the first amendment would not. Since I am probably more likely to be on the same side as Randy on the merits, let me play devil's advocate. We don't know whether the limits on issue ads is an abridgment of the textual protection of the "freedom of speech" until we figure out what underlying principles the text promotes. Note that the text of the first amendment guarantees not "speech" but "the freedom of speech," as Alexander Meiklejohn famously pointed out. That freedom does not include every act of speech, and it is subject to reasonable regulations. To decide whether the ban on issue ads violates "the freedom of speech" we need to generate a theory about what kinds of regulations are reasonable and what kinds are not. To do that we will have to figure out what principles underlie the first amendment's text. But we are not done yet. We will also have to come up with some implementing rules in the form of doctrines that will help us apply the text and its underlying principles to concrete cases. Much of the work of courts that is called "interpretation" is actually the construction of these implementing rules. These implementing rules are not foolproof, and they are often controversial, and their scope and reach change over time. But they are necessary to the workaday task of articulating and applying an abstract textual guarantee. For example, if we think that time place and manner regulations are consistent with "the freedom of speech," and we believe that the 60 day limit on issue ads is part of a more general scheme of time place and manner regulation, then the limit is not inconsistent with "the freedom of speech." In fact, I am fairly dubious that this is so for reasons I cannot get into here, but that is how you would go about thinking about the problem.

Or take Brown v. Board of Education. The text of the Equal Protection Clause does not tell us which inequalities violate the Fourteenth Amendment; moreover, the law abounds in practices and statutes that treat things differently. To understand how the Fourteenth Amendment applies to the case of school segregation (and, here, in particular, we would have to look to the Privileges and Immunities Clause as well as the Equal Protection Clause) we have to have some sense of the underlying principles that animate the amendment. If, for example, the amendment promotes a conception of equal citizenship and is designed to prohibit class legislation that creates or maintains a caste of citizens by operation of law, then we have to go on and ask whether school segregation by race does this. And we will need implementing rules just as in the First Amendment case. It is by no means clear that the original meaning of the Fourteenth Amendment conclusively decides Brown v. Board of Education unless we also look to underlying principles to help give us a sense of what the text means. Even when we get to very controversial issues like affirmative action in state institutions of higher education, it is by no means clear that the original meaning of the text definitively tells us how to decide the case. And, more to the point, if we must make use of these underlying principles and implementing rules to decide the case, it is hardly clear that either is trumping or causing us to ignore the original meaning of the text in the manner of my previous example of the 35 year age limit for the Presidency.

I agree with Randy that underlying principles (and, for that matter, implementing rules in doctrine) should not cause us to "ignore or trump" the original meaning of the text. And when it is clear that this has occurred, that is a reason to rethink the principles and modify or even discard the implementing rules. But I do not believe that it is always so clear when this has occurred, when we are interpreting and applying a relatively abstract text like the First Amendment, or the Fourteenth Amendment's equal protection clause, precisely because we need these principles and implementing rules to help us understand how the text applies in concrete circumstances. What Randy does not emphasize sufficiently, I think, is that in many cases we cannot treat underlying principles and implementing rules as a merely extraneous element, unnecessary to the practical task of fidelity to the original meaning of the constitutional text. They are required by the goal of fidelity. Discovering, developing, and applying them is how we can be faithful in our own time. We cannot apply the Constitution's most abstract provisions without the use of principles and implementing rules.

Not only will I agree with Randy that underlying principles and implementing rules may not allow us to "ignore or trump" the original meaning of the text, I will assert that this precept is, in fact, my general view of when constitutional change through interpretation is authorized. Like Randy, I do not believe that stare decisis is an inexorable command when it is inconsistent with the Constitution's meaning, and unlike many liberal constitutionalists these days, I do not think that the best way of preserving the Constitution's guarantees is to force judges to swear at their confirmation hearings that they will respect precedent above all else. We should discard old doctrines when we come to recognize that they no longer comport with the original meaning of the text and the principles underlying the Constitution (principles which themselves must always be consistent with the original meaning of the text.). People regularly disagree about when this has happened, and that is why people fight over existing doctrines and seek to overrule and change them. Social movements (and political parties) organize around the belief that their view of the constitutional text and underlying principles is more correct, and they seek to persuade others that their views are the best ones. Constitutional revolutions occur when they succeed in persuading enough people. That does not guarantee that the positive law of the Constitution always reflects the best interpretation of the Constitution. What our system does do is allow everyone a chance to have a say in the interpretation and application of constitutional doctrine in addition to their ability to participate in actual changes to the constitutional text through constitutional amendment.

Randy concludes his essay by arguing that people are tempted to look to underlying principles because "it appears to yield better results than respecting the text and nothing but the text." He gives Brown as an example. But he is wrong to suggest that the choice is either underlying principles or "the text and nothing but the text." As I have argued, we cannot look only to the text when it is relatively abstract. We need both underlying principles and implementing rules to decide concrete cases. We need them to be faithful to the original meaning of the text. The requirement of fidelity demands that the underlying principles and implementing rules must always be consistent with the text. However, as, I have also argued, people will often disagree about the best way to do this and each group will insist that the other side is ignoring the original meaning when in fact they are offering competing interpretations of what it means to be faithful to that meaning in current circumstances. Therefore much constitutional interpretation requires persuasion over long periods of time, both in courts and in the public sphere generally.

Randy gives Dred Scott, Plessy, and Korematsu as three examples of cases where courts used an underlying principles approach and substituted underlying principles for original meaning. I wish he would spell this argument out in more detail, for although I agree that all three of these cases are wrongly decided, I don't think that any of these cases actually involved judges who said they would not follow the text's original meaning. Korematsu, after all, was written by Justice Black who always believed that what he was doing was applying original meaning. Chief Justice Taney insisted that blacks could not be citizens because precisely because the court could not "give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted." At most he is making an (bad) argument from original intention, but he is certainly not abandoning originalism for some underlying principles that could change over time. And Justice Brown's opinion in Plessy says nothing about displacing original meaning in favor of underlying principles; quite the contrary, he assumed that the principle that the Constitution did not secure social equality between the races was fully consistent with the text of the Fourteenth Amendment. And, I am afraid to say it, but his views about the original meaning of the Fourteenth Amendment (and the exclusion of social equality from its requirements) was not altogether uncommon at the time he wrote Plessy. (Indeed, the case was decided 7-1.)

The Justices in these cases may have gotten the meaning wrong, but that does not mean that they are members of the underlying principles school that Randy wishes to criticize. Indeed, the examples of Dred Scott, Plessy, and Korematsu serve only to show that people who all seek to enforce the text's meaning will sometimes have very different views about what the original meaning of open ended clauses of the Constitution requires. And as fallible human beings influenced by the political demands of their day, they will sometimes be right and sometimes be wrong.

Near the end of his lecture, Randy gets to the heart of why Scalia has adopted his approach. Scalia wants to protect democratic majorities, and he wants to promote judicial restraint and cabin in judicial discretion. What Randy's original meaning approach does not do, particularly with respect to the open ended clauses of the Ninth Amendment and the Privileges and Immunities Clause, is suggest how to cabin in that discretion. Randy points out that "broad as both these provisions are, they are neither unlimited nor entirely open-ended." I think someone like Scalia would concede the point but respond that they are plenty open-ended enough for judges to impose their personal values in the guise of constitutional interpretation. Randy responds that this discretion "is not a bug" but "a feature." I think he is right about that. However, this is the sort of thing that software companies often say to end users who find their software defective, and for many users it is cold comfort. And in the same way, telling someone like Scalia that of course unelected jurists will have discretion in filling in the meaning of open ended clauses is a feature not a bug will be cold comfort to him.

And that brings me to the point on which I will close, and about which I hope to write more. We ask theories of interpretation to do several different things. We ask them to articulate basic rights and structures of government and apply them to concrete cases, and we ask them to constrain interpreters in performing this function. It turns out that given the Constitution and legal system we have, it is very difficult to do all these things at once. Therefore my view is that the work of constraining interpreters can only be partially achieved by the theory of interpretation. That is a good thing too, because the work of the Supreme Court, as a multimember body, is unlikely over time to correspond with the products of any single coherent theory of constitutional interpretation. Rather, we should look for the mechanisms of constraint elsewhere in the constitutional system. As I've explained elsewhere, the most important sources of constraint come from constitutional structure-- the combination of the party system and the appointments process, which continually pushes the Supreme Court toward the views of the national political coalition. This constraint is not the same as a constraint that forces judges only to produce correct interpretations of the original meaning of the Constitution, but it is, on the whole, a more reliable constraint than announcing the best theory and expecting a multimember court to apply it faithfully over time.


Good post.

Also, good points on how some of the most ignominious opinions are based on originalism.

In fact, contrary to the myth many conservatives spread about Dred Scott, it is a quintisentially originalist opinion, as are the 6 other opinions that reach the same conclusion.

None of the other six opinions mntion the due process clause at all, by the way. Taney's and their opinions are mored based on a 10th amendment Jeffersonian strict construction argument that is backed up by Article 4, sections 2-4.

In fact, I can't think of too many opinions that are more originalist than Scott and use the term "when it was framed and adopted" more than Scott.

This is shown in the fact that no opinion cites Taney to discuss due process or substantive due process. However, 50 years after Scott in South Carolina v US, Justice Brewer cited Scott as the definition of originalism in an opinion joined by Holmes and Harlan.

80 years after Scott in Blaisedell, Justice Sutherland writing for the 4 Horsemen in dissent cited Taney's originalism to strike down a law that violated the contracts clause.

It's funny how Bork or Scalia never mention how Scott is a literal smorgasbord of originalism. I wonder why?

Great post, Jack.

One minor quibble (an addition, really): In order to figure out whether the "restriction" on issue ads within 60 days of an election is consistent with the constitutional text -- or the underlying principles -- we'd need some sort of understanding about the notion of "the freedom of speech" *as applied to corporations.* And that's because the federal "restriction" is in fact a requirement that *corporations* pay for such election-related speech from a segregated fund, a "PAC." The rationales for permitting such a requirement -- which has now been in place for 59 years -- are both related to particular features of the corporate form and to the perquisites that corporations receive from the state. See the opinions in Austin. (The PAC requirement also applies to labor unions, as to which the corporation rationales do not apply. The Court has never explained why the PAC requirement is ok as to unions.)

I'd be willing to wager -- although I do not actually know -- that to the extent corporations were even thought about in the Eighteenth Century, their unlimited use of shareholders' funds for political advertising was *probably* not what a reader would have had in mind when seeing the phrase "the freedom of speech."

Great post.

But it is hardly clear that an appeal to underlying principles per se creates any of these dangers, or, to put the point more bluntly, that it creates any of these dangers more than the direct appeal to the original meaning of the text,

And it's certainly arguable that the 'direct appeal' of originalists is more dangerous to the point that it embraces the myth that texts are self-explicatory. You can have such a thing as an originalist hermeneutic, as long as you're honest about it being a hermeneutic.

'The text and nothing but the text' is a neat line, but it's also couched in ideology, given that the text is, to quote TS Eliot, 'still, and still moving'. There's always going to be an rhetorical (and ideological) advantage for those who adopt the 'no ideology here, move along' position; but that doesn't make the consequences of that position advantageous.

"Note that the text of the first amendment guarantees not "speech" but "the freedom of speech,""

Whew, what a perfect example of the techniques of sophistry as applied to the Constitution! Yes, I suppose that the Constitution guarantees that you'll be allowed to speak, not that you WILL speak, but how does this allow a power to regulate the "time, place, and manner" of elections to, instead, speach, which happens to concern elections?

If we're to be honest, there's no enumerated power upon which to base federal campaign finance regulations. Speech concerning candidates for office is neither a matter of when elections will be held, where the polling places will be located, nor even of how the votes will be counted. It's just not a subject Congress was given ANY jurisdiction over in the first place.

Sarah Weddington? Hmm.

Anyway, "freedom of speech" means an overall principle, not just the right to say whatever you want. It has a specific flavor like many of the other terms in the BOR do. It does not just mean the ability to say whatever you want.

Sophistry. Well, "manner" does not seem to on its face mean the limited thing you say it does either, does it? It is not limited to "Election Day." In fact, with mail in ballots and such, there often isn't really any one day any more, but a election period.

No, it is sophistry, as the thing whose manner can be regulated is the election, not the campaign. They are distinct, and the latter is exactly at the core of what the 1st amendment exists to prevent regulation of.

Dred Scott is perhaps a good example of Raoul Berger's sort of originalism when it argued that the framers of the Declaration of independence were "incapable of asserting principles inconsistent with those on which they were acting." 60 U.S. 393, 410 (1857). That sort of reasoning suggests that we are bound by the framers' specific expectations, or the reference/extension of their lanaguage. But South Carolina and the other later cases, like Euclid and the Blaisdell dissents, take a more refined approach that acknowledges the interpretive relevance of facts about which the framers can we ignorant or wrong. They suggest that we are not bound by language's original reference, but instead its original sense or intension. South Carolina says,

"The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning."

199 U.S. 437, 448-49 (1905).

Euclid v. Ambler Realty, by Sutherland, says,

"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise.... [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles...."

272 U.S. 365, 387 (1926).

Sutherland's Blaisdell dissent concedes, "The provisions of the Federal Constitution, undoubtedly, are pliable in the sense that in appropriate cases they have the capacity of bringing within their grasp every new condition which falls within their meaning." 290 U.S. 398, 451 (1934).

For more, see my article on the sense-reference distinction.


That's a more broad construction than Bork/Scalia/Rehnquist et al apply.

According to them there is no change. What speech meant in 1791 it means in 2006. What was cruel and unusual in 1791, is in 2006.

However, Sutherland isn't that liberal. The main difference is between Hughes and Sutherland. Hughes says, given the principles what would the Founders have done in 1935 during the Depression. Sutherland says, if the Depression and the conditions had happened in 1787, what would they have done.

IOW, takes the principles and applies them forward and one applies them backward.

I'll go with Hughes, Brandeis, Cardozo, Stone, and Roberts.

How do you think Scalia or Bork would have voted in Blaisdell?

I agree that Scalia et al sometimes seem like they agree with Raoul Berger's methodology--the beginning of my article discusses McCreary County and Roper--but at other times they seem like they could agree with a Euclidean semi-originalism.

"According to them there is no change. What speech meant in 1791 it means in 2006. What was cruel and unusual in 1791, is in 2006."

But these are two different claims--the meaning can be stable, but the facts might not be, or might be misperceived in ways that the meanings of words can't be. That's the whole point behind the relevance of the sense-reference distinction.

As to Bork, his language in defense of Brown suggests that he thinks the framing only fixes a fact-unsaturated major premise, not actual conclusions. See Bork, The Tempting of America: The Political Seduction of the Law 162-63 (1990) (“[A]ll that a judge committed to original understanding requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a major premise. That major premise is the principle or stated value that the ratifiers wanted to protect against hostile legislation or executive action. The judge must then see whether that principle or value is threatened in the case before him. The answer to that question provides his minor premise, and the conclusion follows.”); id. at 75-76 (allowing for framer error: “equality and segregation were mutually inconsistent, though the framers did not understand that.”).

Scalia's response to Dworkin in A Matter of Interpretation says that he prefers "semantic originalism" (or "original import") to "expectation originalism," so he's also on board with the main idea, though I agree that his 8A reasoning is a little too quick; he should acknowledge that the framers could have made a factual error relevant to the assessment of the cruelty of capital punishment, but it's extremely unlikely that they did.

Thomas cites South Carolina in McIntyre v. Ohio Elections Commission, 514 U.S. 334, 359 (1995) (Thomas, J., concurring in judgment).

I'm not sure I understand the difference between the Framers assessing 1935 and the Framers assessing a 1787 with a Great Depression, if the only relevant difference between 1787 and 1935 is the existence of the Great Depression. So I'm not sure that any theoretical dispute in Blaisdell was outcome-determinative.

Stone and Brandeis joined Euclid, by the way.

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