Thursday, August 24, 2006

My defense of originalism (and the living constitution)


For the past year I've been rethinking my views on constitutional interpretation, and rereading some of the very rich literature that has developed in the past fifteen years or so, as well as studying the history of the Fourteenth Amendment.

This summer, I wrote up the results, offering a method of interpretation I call text and principle, which is both a form of originalism and a form of living constitutionalism.

Many faithful readers of this blog know that I have been very critical of originalism as it has been practiced, and have defended the idea of a living constitution. But I have gradually become convinced that these two positions are not really inconsistent with each other; only particular versions of them are. This article gives a fuller account of my views.

Not shying away from a challenge, I then decided to take on one of the defining constitutional controversies of the day, namely the constitutional right to abortion. It seemed to me that no attempt to offer a method of constitutional interpretation these days would be worthwhile unless one can explain how it applies to the constitutional controversies that concern people the most. If a theory can give a reasonable account of the right to abortion-- whether for or against-- most other issues will probably be a lot easier.

The second half of the paper applies the theory, first giving an account of the original meaning of the fourteenth amendment and then applying the theory to the right to abortion. (Actually, I conclude that there are two different rights).

About three years ago, I wrote up my best arguments for the right to abortion and published them in my edited collection, What Roe v. Wade Should Have Said. Because my views on interpretation have changed in the interim, this argument is has some important differences from the one I gave there.

I don't contend that reasonable people using my method of interpretation could not disagree with my conclusions about the right to abortion. The point of such a method is that different people using it can have a common language for discussion and analysis. I do claim that my arguments about abortion are consistent with the original meaning of the Constitution, and that, in my opinion, they are a better interpretation.

Here is the abstract for the article:

This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.

UPDATE: Both Randy Barnett and Larry Solum have graciously recommended this piece, and in return I want to thank both of them for the influence they have had on my thinking on these questions. Randy's book, Restoring the Lost Constitution, was a real advance in the debate about originalism, and showed how nonoriginalists could come to terms with the arguments that originalists were making; he has elaborated these themes in various blog posts on The Volokh Conspiracy. Larry and I engaged in a long (and to my mind, very interesting) debate on our respective blogs about formalism and historicism in constitutional interpretation that also helped me sharpen my thinking. This is one example where the combination of traditional scholarship and blogging can really help scholarship.


Attempting to articulate a dichotomy between original meaning and original expectations is, in my view, a mistake. If the original meaning of "freedom" restricted the class of free individuals to whites, however implausible that meaning of freedom is, it is difficult to understand how applying the term freedom to nonwhites is faithful to a text using the term "freedom." Dworkin attempted, unsuccessfully in my view, to distinguish between "meaning" and "expectations" also, and while arguing against the plausibility of this distinction requires a more comprehensive argument than can be presented here, I think there is little hope that the distinction will work.

Permit me to add one point: Of course, there might be ways of analyzing "original meaning" and original expectations" that permit a distinction between these terms. But I would argue that, explicating the meaning of a term requires placing it in its conceptual scheme which includes paradigmatic applications of the term. It’s difficult, at least for me, to appreciate how the meaning of terms within their conceptual schemes can be divorced from these paradigmatic applications. Thus, when paradigmatic applications are altered, so is the term’s meaning.

Sam, your point about judicial constraint is well taken. But remember, fidelity to text and principle is a claim about what is necessary to be *faithful* to the Constitution, it is directed at citizens as well as judges. It is not a claim about what is necessary (or sufficient) to constrain judges.

Fidelity to text and principle does not exhaust all the tools and sources that judges may use to decide cases. Judges can use original expected application, post-enactment history, judicial and non judicial precedents (including subsequent constitutional constructions), other structural principles, intertextual implications, consequences, and considerations of judicial role. All of these limit judicial interpretations and constrain judges in addition to the requirement of fidelity to text and principle.

So even if reasonable people could disagree about text and principle and still be faithful to the Constitution, there would be a lot more that judges would have to consider to decide any particular case.

Put another way, the question of what constitutional fidelity requires is not the same question as what features of the legal system appropriately constrain judges. We shouldn't conflate these two questions. One standard argument for expectations based originalism is that it constrains judges. But since originalist judges must dispense with original expected application in a wide variety of cases (most cases involving post New Deal federal power, for example) and because judges pick and choose when they will hew to original expected application, it expectations based originalism offers far less constraint than one might imagine. In fact, other features of legal culture provide most of the necessary constraints on judges, including expectation-originalist judges like Scalia.

I have to complain, again, about the side effects of the tendency to naturalize discussions of social behavior and law. It's something that hangs over this discussion even if it is not its subject.

Professor Balkin seems unwilling or unable to make the case for the what almost any historian would claim as the logical basis for his or her chosen field: we can never know the past, but it's nonetheless our obligation to try.
To say that we have an obligation to argument and debate -as a lawyer's obligation is to his client and the court, and not to his beliefs- is not to say that we are not bound by the the text of a law or of the Constitution. Professor Balkin refers to the logic of text and principle, but principle is a weasel word and you can argue all you want but that won't change. If one wants to argue against the over-simple understanding of language that originalists defend, you have to be prepared to argue not only that such weasel words are inevitable -indeed that discussions of value are inevitable- but that our way of government is better served by them than not.

There will be cases when meanings will be stretched. Hasidic neighborhoods have miles of string tied to all the lampposts that are then run to each house so that families will be able to go outside their houses on the sabbath while still being within a symbolic 'home.' Is that following a law or breaking it?
There is no right answer. There is no naturalized epistemology of how we choose to define ourselves and our society.

Women were not fully vested participants in this country 200 years ago. It was not assumed that they were or needed to be capable of independence. Now whether some people like it or not, women need to look out for themselves as much as men do, and they need the protection of (or from) the law due every citizen. That is an argument from a principle in the Constitution, but it is not the only possible one.

The argument between those who would hold one interpretation over another is an argument not about law but how about we define ourselves, by reference to the words on a page. Protestants and Catholics define themselves in argument over the words in the Bible. Constitutional law is no different (and God should she exist has little to do with either). To refer to 'progress' and other buzzwords of naturalism does nothing but contribute to the weakening of democracy by allowing for the belief that the argument will and should someday end.
It won't and it shouldn't.

If we were forced to ignore past practice of a law and concern ourselves with the verbiage of the law, the past sins (failure to recognize women and blacks as full citizens for example) would be irrelevant... except we'd have to rewrite some of our history texts I suppose.

Since grade school I have remembered the 9th: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This is in plain English too, and a powerful statement directing government to butt out of our personal lives!

If we interpret laws as written, using Occam's razor... taking the most obvious meaning... and it doesn't get the job done... rewrite the law.
As it is, lawyers often rewrite the law by couching arguments in legalese, twisting and torturing the language to be whatever supports the case being made. This practice allows badly written laws to remain on the books, and confusing precedent to be set.

"It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition."

What, ALL these "transformations"? Every last one of them? Not a single one of them was a mistake?

What use is there to a Constitution that can never be violated, or misunderstood, only "transformed"?

I think you've only proven that living constitutionalism, or anyway the sort of reasoning behind it, is a universal solvent: It's as capable of destroying the meaning of competing constitutional philosophies, as it is constitutions themselves.

Do not read, as children do, to amuse yourself, or like the ambitious, for the purpose of instruction. No, read in order to live.
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