Balkinization: An Originalist Argument Against Rigid Originalism

Comments:

You can find Madison quotes on both sides of this issue. In a letter to Henry Lee, Madison said "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject." July 25, 1824.

Eight years later, in a letter to Jared Ingersoll, he said:

“It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held [by Madison] to be unconstitutional, received [Madison’s] executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution through a period of twenty years, with annual legislative recognition,--in one instance, indeed, with a positive ramification of it into a new state,--and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which maybe added, a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the executive, under these circumstances, with an admission of the expediency, and almost necessity, of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intentions.” Madison to Jared Ingersoll, June 25, 1831.

# posted by

Mark Field : 6:45 PM

I think I read somewhere that one of the perennial questions of jurisprudence concerns the relationship between law and society: does law mirror society, or does law structure society? (I didn't keep reading, but did order the book.) The quotation you've cited interests me because it focuses us on the question of our identity, as a 'nation' or 'people' or whatever, and relates this question to the nature of constitutional interpretation. Madison seems to say something like: insofar as 'we' are a self-creating people, our constitutional jurisprudence should match that self-conception. In other words, the Madison you cite believes that law can structure society, and that its effects lie, at least partially, within the rational control of judges. Perhaps, if we think of ourselves as an ethnos, or a people created by non-political causes (language, culture, religion), then we should opt for more Scalia-like interpretive strategies. (Treating both interpretive strategies as good-faith enterprises).
Even though it's messier--there's no right answer to the question 'Who are we?'--perhaps the fairest thing to say is that we ought not try to answer the question 'How should we interpret the Constitution?' without also engaging the questions 'Who are we?' and 'Who do we want to become?' Me, I opt for the idea that 'peoplehood' can be rationally created through instruments like laws (though, of course, there will be unforeseeable side effects), and that this is one characteristic of the America I want to live in.

# posted by

Stephen : 9:10 AM

"Rigid originalism"? What's that?

I love the use of "sense" in the first quote that Mark presented from Madison--too bad it's 67 years before Frege's use of the term to mark the sense-reference distinction. [Shameless self-promotion.]

I think Madison's two views can be made consistent if we think about it this way: the original meaning is what counts as a matter of constitutional interpretation, but the President is only a single actor, part of a tradition that is collectively interpreting the Constitution; he doesn't have the authority to interpret the Constitution with his veto pen, Madison seems to be saying. One way to put the point is that he's making a jurisdictional argument that the President doesn't have the power to interpret the Constitution now that so much water is under the bridge. But the substantive argument in the letter to Lee, about how to interpret the Constitution once you've got jurisdiction, is consistent with limits on the appropriate occasions for constitutional interpretation.

I'd likely agree with Madison about his 1824 method-of-interpretation point and not agree with him about his 1831 occasions-for-interpretation point, but I do think that they can be made consistent.

# posted by

Chris : 1:22 PM

Chris, if the process of interpretation were to be considered a collective enterprise -- certainly a defensible view -- could anyone ever be sure that the "collective" was actually applying Madison's test for the "sense" of the Constitution?

# posted by

Mark Field : 3:14 PM

Mark,
It seems to me that we could find out what theory of interpretation a collective group of people is using about as easily as we could figure out what mental states a corporation has. That's not a trivial thing to do, involving sometimes-complicated questions about exactly who has what authority to do what, but the criminal & civil law deal with this sort of question all the time, with a tolerable degree of success.

# posted by

Chris : 4:02 PM

Chris,

The practical difficulties strike me as much greater. I have no idea how anyone would establish, as a factual matter, how the collective had reasoned in reaching its decision. We have that same problem with respect to Madison's own test, and I wish I could say there's agreement among scholars on that subject, but we both know there isn't.

Leaving that aside, the next issue becomes "who decides?". As things stand now, the SCOTUS does. Under your suggestion, would the Court continue to decide if interpretations adopted collectively (through Congress and the President, I suppose) were adopted in the proper sense? If so, is that any different than our current system?

# posted by

Mark Field : 4:54 PM

Mark, Thanks for the interesting quotes from Madison.

It is important to maintain a key distinction, which I should have drawn more sharply.

It makes sense--and would be consistent with the Federalist 14 quote--that Madison would think it appropriate to be bound by original meaning (and original expectations) during his lifetime. Broadly speaking, this would continue to be drawing from and applying the knowledge and experience of their own (founding) generation.

The question I posed is whether Madison would have thought that this same interpretive strategy would make sense 200 years later. The statement I quote suggests otherwise. Your quotes, which relate to his views in connection with current isssues, do not answer this question (though his awareness of the natural changes of meaning over time is suggestive).

Again, this example of two very different (and equally justifiable) ways of framing the original meaning inquiry demonstates its problematic character.

# posted by

Brian Tamanaha : 5:33 PM

Mark,

To be clear, I don't agree with Madison's claims about it being inappropriate for the president to disagree with the Supreme Court and lots of other people in vetoing a bill on constitutional grounds. So I don't claim to be able to make complete sense of his jurisdictional point; I only claimed that if you see it as a jurisdictional point, it's not obviously inconsistent with his other views on the substance of how to interpret a constitution. If you see the American tradition of constitutional interpretation as a complicated beast, like a corporation, this sort of jurisdictional move could be given more definite shape. But I don't know what exactly Madison might have had in mind, and I'm even less sure what the proper occasions for constitutional interpretation actually are.

I'm not sure that under our current system, the Supreme Court claims to make decisions binding on everyone else, or that others accept such claims. There is Cooper v. Aaron, to be sure, but there are also such sources as Frankfurter's concurrence in Graves v. New York ("The ultimate touchstone of constitutionality is the Constitution itself, and not what we have said about it") and Justice Douglas's article ("A judge ... remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.").

Brian,

I don't think it makes sense to construe Madison's 1824 views as only applying to the time of the founding generation, upon whose death all bets would be off, and the Constiution's meaning would then "partake of the changes to which the words and phrases of all living languages are constantly subject." I take Madison's condemnation of that sort of elasticity to be pretty clearly a timeless one. He speaks of the authority of the original constitutional sense and meaning as the key to constitutional legitimacy, consistency, and stability. Those values don't depend on some framers still being around.

I don't think Madison would think that we are ever bound by the original expectations, but that's just because I imagine that he was a sensible fellow, who surely would not want us to be bound by the founders' errors about the reference-yielding facts, even though we would be bound by the sense that the framers thought was historically expressed by the constitutional text. Of course, I think the framers' specific expectations should, like all assessments of the reference of constitutional language, get Skidmore deference, and I imagine that Madison, being so sensible, would agree.

# posted by

Chris : 6:11 PM

"Madison was not presenting a theory of consitutional interpretation in this passage; rather, he was making a more general observation about the entire constitutional design."

Precisely: Madison was asserting that the people of today should not be bound by the dead hand of the past in drafting a constitution.

Judges, of course, are not drafting a constitution. They're applying one. Indeed, it's perfectly possible for a judge, by engaging in non-originalist "interpretation", to impose the dead hand of the past on a populace who'd rejected it in drafting the clauses he's charged with interpreting.

Hypothetically, a population might try to make a break with what had been the previous tradition of unlimited government, by adopting a constitution creating a limited government posessing only enumerated powers.

Only to be thwarted by a judiciary which "interprets" those limited grants of power so expansively as to recreate the unlimited government the people had consciously rejected.

Wouldn't that be ironic?

# posted by

Brett : 6:53 PM

Brian,

Thanks for clarifying. I did miss your point the first time around.

I think it's possible, almost, to square Madison's statements with a doctrine of "original meaning" similar to Randy Barnett's. Let me set out the argument first and then the important way in which Madison subverts it.

As you alluded to, Jefferson famously wrote to Madison (Sept. 6, 1789) and argued that the earth belongs to the living, that each generation could act only for itself and never bind succeeding ones. Jefferson being Jefferson, he carried this to its logical conclusion:

"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished them, in their natural course, with those whose will gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right."

Madison, however, politely disagreed. In his reply of Feb. 4, 1790, he said,

"However applicable in Theory the doctrine may be to a Constitution, it seems liable in practice to some very powerful objections. Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself, be too subject to the casualty and consequences of an actual interregnum?
***
I find no relief from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. It seems less impracticable to remedy, by wise plans of Government, the dangerous operation of this doctrine, than to find a remedy for the difficulties inseparable from the other."

I think this response would be consistent with interpretation according to original meaning (or "sense", to use Madison's term).

I think his letter to Ingersoll, which I quoted above, can also be made consistent with this doctrine, subject to the exception I'll mention below. One way to view Madison's attitude about the Bank is to treat him as saying, "I personally thought that the Bank was unconstitutional. However, the actions of my fellow citizens over a long period of time have demonstrated that I was wrong about that. As a good democrat, I acceded to the majority view."

This is at least plausible, because there wouldn't be much doubt that Americans generally were applying the original meaning over that time frame -- it was so close in time to the ratification that no other meaning was possible.

But. Madison didn't stop with the theoretical justification for his about-face on the Bank. He also gave a practical reason (from the letter to Ingersoll): "with an admission of the expediency, and almost necessity, of the measure".

This was a policy reason. Policy reasons are NOT originalist (except in Prof. Balkin's application sense). Nor was this the only policy which Madison supported despite concerns about constitutionality. Examples include the Louisiana Purchase and judicial review.

I don't think there is an easy answer with Madison. My own view is that Madison was much more a pragmatist than a doctrinaire theorist, and a good democrat with real confidence in the people (as your quote from Federalist 14 shows). I think he'd happily aquiesce in text-and-principle. I doubt he'd ever agree to fix the applications of his Constitution to the conditions of 1789.

# posted by

Mark Field : 8:15 PM

Chris,

Given what I said above, I think you and I agree. If not, let me know.

Brett,

Hypothetically, a population might try to make a break with what had been the previous tradition of unlimited government, by adopting a constitution creating a limited government posessing only enumerated powers.

Only to be thwarted by a judiciary which "interprets" those limited grants of power so expansively as to recreate the unlimited government the people had consciously rejected.

This could only happen, of course, if the people themselves actually acted on the powers given them by the judiciary. Self-restraint is a trump card, and not playing it suggests the judges may have been right.

# posted by

Mark Field : 8:20 PM

# posted by

Brett : 10:32 PM

That attitude, Mark, stands in opposition to the whole concept of constitutional rights as protections against the passions of the mob, and of the amending process as a way of making sure fundamental rules only change in explicit ways, due to sustained consensus.

I agree, up to a point. I'd make two important distinctions.

First, many of the powers upheld by the Marshall court were powers of the Federal government vis a vis the states. I don't see those as involving fundamental rights, but as a question of which agent the people want to handle certain issues. As to such issues, I don't see much need for the courts to serve a counter-majoritarian function.

Second, the closer you get to the ratification, the more likely it is that the people who accepted and ratified it were simply expressing their own fundamental understanding of how the system was supposed to work. There may still need to be safeguards -- your point about constitutions and democracy is true -- but not necessarily on every issue. Some issues, as Madison showed with the bank, may just need to be settled by practice.

# posted by

Mark Field : 10:52 PM

Lyn Hejinian, in The Language of Inquiry, says that “a ‘closed text’ is one in which all the elements of the work are directed toward a single reading of it. Each element conforms that reading and delivers the text form any lurking ambiguity. In the ‘open text,’ meanwhile, all the elements of the work are maximally excited; here it is because ideas and things exceed (without deserting) argument that they have taken into the dimension of the work.” (pp. 42-43). She later describes a ‘rage to know’ as “one expression of the restlessness engendered by language. ‘As long as man keeps hearing words/ He’s sure that there’s a meaning somewhere, as Mephistopheles points out in Goethe’s Faust” (p. 52).
Is the Constitution an open or closed text, in Hejinian’s sense?

David Fisher

# posted by

D H Fisher : 8:15 AM

Mark,

I'm not sure we do agree. I think Madison's (sketch of a) theory of constitutional interpretation set out in his letter to Lee is just about right. (And I think he's setting out criticisms of the freely-morphing Constitution that apply equally to us today.) I don't think that Madison's criticism of Jackson's veto takes back anything he said to Lee, but is making a jurisdictional sort of point about whether it was proper for Jackson to use the veto as an occasion of constitutional interpretation at all--albeit, a jurisdictional point that I don't really agree with, and can't make perfect sense out of, though I'll try to do what I can, through analogies to corporations and so on. I still disagree, then, with your opening salvo that Madison offers statements "on both sides of this issue." I don't think he does.

David,

I don't know about openness & closedness, but I think I do prefer Frege to Hejinian!

# posted by

Chris : 8:25 AM

Hejinian's work can be read as a protest against lyric poetry's movement toward closure (as in Wallace Stevens' description of "a poem of/ the whole, the essential compact of the parts" in "A Primitive Like an Orb") or as a celebration of "open texts" as "open to the world and particularly to the reader. It [the open text] invites participation, rejects the authority of the writer over the reader and thus, by analogy, the authority implicit in other (social, economic, cultural) hierarchies. It speaks for writing that is generative rather than directive." [Language of Inquiry, p. 43].
Given the reverence for the authority of precedent, "settled law", or recognized commentaries in the discourse of law, and the desire for closure manifest in legal proceedings, it is worth asking what advocacy of "open texts" (in literature) has to offer legal interpretation. Hejinian begins "The Rejection of Closure" with the observation that "The writer experiences a conflict between a desire to satisfy a demand for boundedness, for containment and coherence, and a simultaneous desire for free, unhampered access to the world prompting a correspondingly open response to it." (p. 41). A similar conflict seems to have been at work in the authors of the Constitution.

# posted by

D H Fisher : 9:31 AM

David,

Regarding "a conflict between a desire to satisfy a demand for boundedness, for containment and coherence, and a simultaneous desire for free, unhampered access to the world," I think that maybe my Fregean theory can give you something of what you want. I say that textually-expressed sense fixes a particular function from possible worlds to constitutional outcomes--maybe that gives us the "boundedness," "containment," and "coherence" part. But it's up to the interpreter to figure out the facts of the world--i.e., to figure out which possible world to plug into that function, yielding the consitutional outcome itself. So maybe that gives us "free, unhampered access to the world" of the sort we want.

Maybe, anyway.

# posted by

Chris : 10:47 AM

Chris,

I say that textually-expressed sense fixes a particular function from possible worlds to constitutional outcomes--maybe that gives us the "boundedness," "containment," and "coherence" part. But it's up to the interpreter to figure out the facts of the world--i.e., to figure out which possible world to plug into that function, yielding the consitutional outcome itself. So maybe that gives us "free, unhampered access to the world" of the sort we want.

I interpret Madison's policy argument for the bank as consistent with what you say here. For that matter, the passage Brian quoted from Federalist 14 suggests that Madison recognized and applauded the "glory" of Americans in determining what world they chose.

If you agree, doesn't that make Madison's view pretty close to yours?

# posted by

Mark Field : 11:20 AM

Mark,
Pretty close. Perhaps I'll start calling my semi-originalism Madisonian, in addition to Fregean-Carnapian, Euclidean ("[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…"), and Antipodal ("We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes."). But I think I'll want to read through my The Mind of the Founder first.

# posted by

Chris : 11:37 AM

You may also want to check out this quotation by Jefferson in his letter to Samuel Kercheval, July 12, 1810:

"[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."

http://www.monticello.org/reports/quotes/memorial.html

# posted by

Jonathan Rowe : 4:00 PM

Of course, I certainly wouldn't call my theory Jeffersonian!

# posted by

Chris : 4:56 PM

Jefferson is pretty much the ultimate NON-originalist in the passages Jonathan and I quoted. In contrast, he was very much a strict constructionist on many other occasions. Here, for example, are portions from his Opinion on the Constitutionality of the Bank:

"I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth (sic -- 10th) amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.

****

It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the
enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution."

# posted by

Mark Field : 7:40 PM

"Jefferson is pretty much the ultimate NON-originalist in the passages Jonathan and I quoted."

No, actually he isn't. Remember, it's not the position of originalists that the Constitution should never be changed. It's that it should be changed by formal amendment.

This isn't an argument about whether the Constitution should change, it's about whether Article V should be used or circumvented.

# posted by

Brett : 9:41 PM

Remember, it's not the position of originalists that the Constitution should never be changed. It's that it should be changed by formal amendment.

This isn't an argument about whether the Constitution should change, it's about whether Article V should be used or circumvented.

I understand. However, Jefferson's letter to Madison, which I quoted in part, specifically denies that a constitution can last longer than 19 years:

"Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right."

# posted by

Mark Field : 11:44 PM

I'll grant you that the kind of implicit sunset clause view you're describing is "non-originalist" in the sense that it's different from originalism.

But it's also non-non-originalist, in the sense that non-originalists today are not claiming that the Constitution has expired, and can thus be ignored. They're claiming that it's still binding, but binds us to something nobody ever agreed to.

That's not Jefferson's each generation getting to make it's own decisions. That's a bait and switch.

# posted by

Brett : 8:16 AM

I suspect Jefferson was getting at something more like frequent amendment, or periodic constitutional conventions. Which, while still giving us a changing constitution, would be more in the spirit of Article V, than this "the words remain the same, but now it means something different" business.

My concern here is that the judiciary's Constitution has bee performing what amounts to a drunkard's walk away from the text. At what point does the judiciary's constitution get so far from the text, that the fact that the text was ratified no longer serves as any source of legitimacy for the judiciary's version?

The American people have a great amount of respect for the Constitution the courts claim to be ruling on the basis of. But what supplies the courts with legitimacy when they're close to the text, could strip them of it when they depart too far.

This is a threat I've never seen much indication non-originalists appreciate.

# posted by

Brett : 8:25 AM

But it's also non-non-originalist, in the sense that non-originalists today are not claiming that the Constitution has expired, and can thus be ignored.

Agreed.

I suspect Jefferson was getting at something more like frequent amendment, or periodic constitutional conventions.

That's possible. It's also possible he had in mind some form of radical democracy. It's hard to know because Jefferson wasn't systematic and at various times made statements which appear to be inconsistent.

At what point does the judiciary's constitution get so far from the text, that the fact that the text was ratified no longer serves as any source of legitimacy for the judiciary's version?
***
This is a threat I've never seen much indication non-originalists appreciate.

I think non-originalists do address this and have several responses. I think everybody starts with the text. The problem only arises when people disagree on the meaning to give to that text.

As for the ratification issue, I subscribe to Madison's "tacit assent" principle. In my view, each generation tacitly agrees to the Constitutional text as then understood, including its historical development to that time.

Others, I'm sure, would give different answers. Prof. Balkin, as I understand him, agrees to accept the original ratification, but treats the text as stating very broad principles. The application of those principles can vary over time.

I'm sure there are other answers too. But I don't think it's fair to say that non-originalists "don't appreciate" the issue; they do, even if you may disagree with their solutions.

# posted by

Mark Field : 11:06 AM

"[E]ach generation tacitly agrees to the Constitutional text as then understood, including its historical development to that time." (Emphasis added.) I think instead we should look to the sense that people at the time of the adoption of that language understood the constitutional language to express. If we really give tacit assent to the "historical development" in the meaning of words, then Madison would be wrong in condemning to Lee the hypothetical situation in which that "the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject." I don't think we give tacit consent to any such thing.

I think we should look, not to tacit consent, but to actual consent--that is, to the Article VI oath.

We should ground our theory of interpretation on a description of the nature of the Constitution itself: what the Constitution is, I think, is a historically-embedded textual command. How do we know this? By looking at the Constitution's "indexical" language--its use of terms like "here," "this," and "now." If we look at those provisions, it seems clear to me that the constitution is a command, that it is historically embedded, and that it is a textual command (so we should take the textually-expressed sense, not the framers' intended reference, as paramount).

We should accept the Constitution's own theory, I think, if we have taken the oath that Article VI prescribes. And that's actual consent, not tacit consent. Perhaps some office-holders think that they are doing something different from agreeing to do what Article VI itself proposes, but I doubt it.

# posted by

Chris : 12:01 PM

If we really give tacit assent to the "historical development" in the meaning of words, then Madison would be wrong in condemning to Lee the hypothetical situation in which that "the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject." I don't think we give tacit consent to any such thing.

I'm not sure Madison was right in his letter to Lee, but that wasn't really what I meant by "historical development". By that I meant changes in the consensus understanding of meaning/application, as opposed to word definitions. For example, people now understand Brown to be good law, regardless what might have been the original understanding of the meaning/application of the 14A.

I think that most citizens apply a very pragmatic test to their loyalty. They grow up with, and accept, the society in which they live. They agree, tacitly, to follow the existing rules of that system, rather than rules which may have applied at some time in the past.

# posted by

Mark Field : 1:05 PM

Mark,

Sorry if I misunderstood. I don't think that there's tacit consent to contemporary understandings of constitutional application, either, though. If there were, we'd never have ground to reverse settled understandings about constitutional application (e.g., as Brown itself did).

Even if you're right for mere citizens, though, I think that officials who swear the Article VI oath have a duty to abide by the Constitution's own self-conception, which assigns to words like "now," and by extension its other language, the sense they had at the time of the framing. Even if obeying the Constitution means upsetting some apple carts, that's what officials have sworn to do.

(FWIW, my article has a big section on Brown. I think the original sense of the P&I clause, applied to the actual facts now, forbids segregation, but that's not something we can just take as a given. In fact, the historical sense expressed by the 14A text, combined with the actual facts, supply a better normative support for Brown than can a theory that simply asks us to take Brown as a brute given.)

# posted by

Chris : 1:30 PM

I don't think that there's tacit consent to contemporary understandings of constitutional application, either, though. If there were, we'd never have ground to reverse settled understandings about constitutional application (e.g., as Brown itself did).

Again in my view, "the current system" includes the possibility of change. I didn't mean that meaning becomes frozen in time, but that people accept current meaning including the prospect of change within accepted rules.

Even if you're right for mere citizens, though, I think that officials who swear the Article VI oath have a duty to abide by the Constitution's own self-conception, which assigns to words like "now," and by extension its other language, the sense they had at the time of the framing.

I realized this distinction after your post above. I'm not sure that your argument is inconsistent with my version of "tacit assent". An oath-taker could, for example, understand the words "this Constitution" to mean "this Constitution as I understand what it means and how it functions today". Indefinite pronouns inevitably create such issues. To paraphrase Heraclitus, can two people ever point to "this" river and mean "the same" one?

That said, your point does have some force and I'm still thinking about it.

FWIW, my article has a big section on Brown. I think the original sense of the P&I clause, applied to the actual facts now, forbids segregation, but that's not something we can just take as a given.

That sounds very interesting, and I'd like to read it, but for some reason SSRN is not letting me download it.

# posted by

Mark Field : 2:30 PM

Ok, Chris, I've thought about your point (at least for 24 hours). In addition to my previous point, I'd add the following in support of my theory of tacit assent:

1. The oath of office requires the President to "preserve, protect and defend the Constitution of the United States". Use of the more general "the" rather than the somewhat more specific "this" works in my favor.

2. Important features of our system have no textual support at all, but have been derived from structural or philosophical considerations. Examples include sovereignty of the people; the principle of majority/plurality rule; the right to vote for President; judicial review; the President's right to fire officers approved by the Senate; etc. Tacit assent theory incorporates these.

3. My tacit assent theory incorporates current applications as well as meaning.* I think that serves a valuable conservative/preservative function.

*To repeat, I don't mean that tacit assent freezes current applications in place. The accepted process for change is one of the features to which people assent.

# posted by

Mark Field : 11:30 AM

Mark,

But Article VI says "this" Constitution, and says that that is what will be the supreme law of the land, suggesting that it was the thing ratified by the conventions (see "this Constitution" in Article VII) and the thing ordained and established by the Preambulatory We that is supreme. The text uses "this Constitution" 12 times in all.

The President's oath, which the Constitution itself quotes, says "the" rather than "this" because it is spoken in a context other than the context in which the Constitution itself speaks. So I don't think the change suggests that the historicaly-embedded text itself is not supreme; in fact, when the President speaks those words, he is using a different sort of demonstrative expression, precisely because it is not the context in which the President utters those words that matters for setting what the Constitution is. As I see it, that time is the time the Constitution is adopted.

"Important features of our system have no textual support at all, but have been derived from structural or philosophical considerations. Examples include sovereignty of the people; the principle of majority/plurality rule; the right to vote for President; judicial review; the President's right to fire officers approved by the Senate; etc. Tacit assent theory incorporates these." For almost all of these, I don't think it's right so say that there is no textual support for them. For instance, the Preamble suggests the ability of the People to ordain and establish a constitutio; judicial review is supported by "judicial power" that extends to "cases arising under the Constitution," and so on. But a broader point is this: we can say that these are nice principles, and pretty important, without saying that they are of constitutional stature. The historic, textually-expressed sense of the constitutional language is the only thing that gets to count as the Article VI supreme law of the land. As a matter of political morality, sure, we may have consented tacitly to lots of other stuff too--they may be part of "our system" (a better example might be political parties)--but I'm mainly concerned about how to interpret the Constitution itself.

# posted by

Chris : 12:21 PM

But Article VI says "this" Constitution, and says that that is what will be the supreme law of the land, suggesting that it was the thing ratified by the conventions

Agreed. My tacit assent theory, because it incorporates historical developments since the founding, does not privilege the original ratification. In a sort of Jeffersonian sense, each generation ratifies for itself.

So I don't think the change suggests that the historicaly-embedded text itself is not supreme; in fact, when the President speaks those words, he is using a different sort of demonstrative expression, precisely because it is not the context in which the President utters those words that matters for setting what the Constitution is. As I see it, that time is the time the Constitution is adopted.

I'm not quite sure what you mean by "historically embedded text". If you mean the Constitution as it has historically developed through today, then I agree. If not -- if you're referring to the original meaning -- then I disagree in the sense that I interpret what the President is promising to do in this sense: he's promising to preserve, protect, and defend the Constitution as he understands what it means today. I'm speculating, of course, but I believe that's what Presidents actually think and what we listeners actually understand and expect.

The historic, textually-expressed sense of the constitutional language is the only thing that gets to count as the Article VI supreme law of the land. As a matter of political morality, sure, we may have consented tacitly to lots of other stuff too--they may be part of "our system" (a better example might be political parties)--but I'm mainly concerned about how to interpret the Constitution itself.

I'm not sure I agree with this, though the issue is moot if you interpret the actual text broadly enough to incorporate some of my examples. Just to pick one, I think that the principle of majority rule is fundamental even if the Constitution itself never uses those words. If you can derive that principle from the text, then we'd agree on the destination and just have some slightly different stories to tell of the journey.

# posted by

Mark Field : 2:05 PM

"I'm not quite sure what you mean by 'historically embedded text'." I mean historically embedded at the time of the adoption--it doesn't matter what words happen to come to mean later. The touchstone for me is the sense expressed by the text at the time the text was enacted as constitutional language. So we disagree.

"I interpret what the President is promising to do in this sense: he's promising to preserve, protect, and defend the Constitution as he understands what it means today. I'm speculating, of course, but I believe that's what Presidents actually think and what we listeners actually understand and expect."

I don't think that people today necessarily think consciously that the oath is an oath to support the original meaning of the terms, but I do think that (a) we think that the oath is doing what Article VI requires, and (b) correctly understood, the Article VI "this Constitution" language and other indexicals like "here" and "now" require the semi-originalist constitutional ontology that I've set out above.

I'm not quite sure what you mean by "majority rule." I don't think, as a matter of political morality, that a majority has a right to do just anything it wants to the minority, and I don't think any serious element of our political tradition would say so either. I do think that decisionmaking in collective bodies like the houses of Congress and the Supreme Court should proceed by majority rule--e.g., in vesting power in "one Supreme Court," the Constitution is vesting power in a majority of the Supreme Court to make decisions on behalf of the whole Court. But I think that's implicit in the textual vestings of power.

The superseded Article II section 1 and the Twelfth Amendment, by the way, do make textual provision for majority rule in the electoral college.

# posted by

Chris : 2:42 PM

I'm not quite sure what you mean by "majority rule." I don't think, as a matter of political morality, that a majority has a right to do just anything it wants to the minority, and I don't think any serious element of our political tradition would say so either.

Agreed. In Jefferson's words, "All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."

Our system limits majority rule in many ways, but we do expect it to prevail in most cases. For example, nobody believes that when the 17A calls for the election of Senators, it means that the outcome will be decided by a minority of voters. All of those nuances go into the affirmation which people tacitly give to our system even if they have no textual source in the Constitution.

# posted by

Mark Field : 3:26 PM