Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times reports that Pluto has been reclassified as one of three dwarf planets in the solar system, ending a controversy among astronomers over that sphere's status. Pluto was not reclassified, as I understand the Times story, because scientists discovered some fact about Pluto that was inconsistent with existing definitions of "planet." Rather, discoveries over the past generation have raised problems with existing definitions of "planet," requiring astronomers to adjust general understandings of what constitutes a planet before determining whether Pluto should be considered a planet.
The reclassification of the solar system and Pluto raise some questions about any variation of original meaning, whether we focus on specific expectations or general principles. Imagine that astronomers had discovered that, contrary to previous knowledge, Pluto did not actually revolve around the sun. In which case, Pluto could have been reclassified consistent with the original meaning of "planet." That the persons responsible for the original meaning of planet (or the most recent authoritative definition) thought Pluto met the conditions for being a planet is of no relevance to whether Pluto is a planet, if new evidence reveals that Pluto does not meet the general conditions for being a planet. Similarly, whether the persons responsible for the Fourteenth Amendment thought the equal protection clause protects abortion rights is of no relevance to whether the Fourteenth Amendment protects abortion rights if, on reflection, we come to believe that abortion rights are consistent with the general conditions for being an equal protection rights or, more accurately, the general principles underlying equal protection. This, I think, is the attraction of the new improved originalism.
The problem, in the case of Pluto, is that what astronomers discovered was that the existing principles of astronomy did not adequately describe astronomic phenomenon. Their discoveries meant that they could determine whether Pluto was a planet only by adjusting the broader principles determining what constituted a planet. The same phenomenon is likely to occur in constitutional societies. Constitutional developments do not simply create conditions under which practices originally classified as constitutional must be reclassified as unconstitutional (and vice versa), new conditions also challenge the capacity of existing constitutional principles to provide adequate criteria for classifying practices as constitutional or unconstitutional. For example, constitutional principles that insist we protect speech but not property do not resolve issues of campaign finance, where the question is whether the regulation is of speech or property. Unless we decide the framers were committed to such abstractions as equality, liberty or human dignity, abstractions that might justify any policy, we are likely to discover that principles the framers in 1789 or 1868 thought would be sufficient to classify practices as unconstitutional or constitutional no longer do so, that as was the case with Pluto, when determining whether abortion is an equal protection right, we will have to adjust general principles as well as specific applications.
Let me be clear on one point. My argument is not that the proponents of abortion cannot rely on the original meaning of the Fourteenth Amendment. My claim is that no one can because the original meaning of the Fourteenth Amendment, understood even in terms of general principles, cannot fully resolve modern problems. Constitutional theory, Pluto suggests, needs a theory of political development which cannot simply be a theory that relies on improved understandings of the general principles underlying constitutional norms. Posted
by Mark Graber [link]
As a big fan of Kuhn's "Theory of Scientific Revolution", I really enjoyed this post. I just want to make sure that I'm reading the concluding sentence properly. You write "Constitutional theory, Pluto suggests, needs a theory of political development which cannot simply be a theory that relies on improved understandings of the general principles underlying constitutional norms." I take it that SIMPLY is the key word.
More generally, the argument is that there are "paradigm crises" that appear in constittuional design when issues appear that the old values and methods don't have an answer for, and in these particular cases, understanding the "general principles underlying constitutional norms" is not going to get the job done. Is that a correct reading?
Astronomers today have available much advanced technology to better understand the universe of the past as well as of the present than did their peers of the past. Constitutional scholars and historians today have available texts going back 200+ years to assist them in understanding the Constitution. But are these scholars and historians in a better position to understand those texts than their peers closer in time to their preparation and publication? Over the intervening years events have occurred that may not have been anticipated back when the Constitution and its Amendments were adopted/ratified. Present day constitutional scholars and historians lack technology comparable to that of present day astronomers to assist them in the originalist search for original intent, original meaning, original understanding, original expectations or original whatever to be thought of next. Perhaps some present day constitutional scholars and historians are looking through the wrong end of their “legal telescopes” for the lost Constitution. Meantime, present day astronomers can conclude, using scientific methods, that Pluto is a dog of a planet rather than rely upon the originalism of Genesis. By the way, would the commerce clause extend to Congress legislative powers with respect to interplanetary and/or intergalactic intercourse?