Monday, August 27, 2007
How Not to Critique Originalism
The article I referred to in an earlier post, “Rebooting Originalism” is now on SSRN. In that post, I said I would address a critique of originalism associated with the “Princeton school” of constitutional interpretation. One of the best known works of this school is a unique casebook, American Constitutional Interpretation, edited (in its third edition) by Walter Murphy, James Fleming, Sotirios Barber and Stephen Macedo. For the purposes of this post, I’m concerned with two recent publications of the Princeton school, Walter Murphy’s grand opus Constitutional Democracy and Barber and Fleming’s Constitutional Interpretation. Both are critical of originalism, at least its “narrow” versions and advance arguments similar to those made by Ronald Dworkin. I’m sympathetic generally to Dworkin’s project, having taken a seminar from him at NYU when he published Law’s Empire. But I’ve gradually come to the view that critiques of originalism that do not take law seriously (so to speak) are somewhat off the point.
I've had a chance to read Professor Griffin's article and it is a useful contribution to the debate.
I find it interesting that we are seeing originalism morph from a restraintist and judicial deference theory of constitutional interpretation (e.g., Borkian/Bergerian) to a more
Barnett and Whittington are not really concerned with the CMD, and Os like Paulsen, Calabresi, and Lawson have laid the theoretical groundwork for why precedent must fall to the original public meaning of the Constituion. (Disfavored Warren/Burger Court precedent the cynic in me wonders.)
No doubt this has much to do with the conservative capture of the fed judiciary and now -- to a certain extent -- SCOTUS.
It's amazing what winning a few presidential elections will do to a theory of constitutional interpretation. Or is that too cynical?
I haven't had a chance to read the full article yet, but the post here seems to leave out some steps. Why would a Dworkian concede that "To be legally enforceable, the Constitution must have a fixed meaning."? What does "fixed" mean, anyway?
I think what Prof. Griffin describes is people talking past each other, but it's not at all clear to me why that's a flaw in Barber, Fleming, et al. and not in Whittington.
Stephen Griffin says,
>>>>> To be legally enforceable, the Constitution must have a fixed meaning. In fact, if it did not or could not have a fixed meaning, there would be no point in giving it the status of a law in the first place. <<<<<
The Constitution cannot have a fixed meaning because the world is not fixed. Human knowledge and technologies as well as social attitudes change in unforeseen ways. For example, we can only speculate on how the Founders would have viewed First Amendment issues in regard to the Internet, TV, and radio.
Originalism leads to the distortion and fabrication of history by originalists who have agendas. For example, in interpretations of the establishment clause, the Founders have been portrayed as everything from a bunch of bible-pounding holy rolling fundies to a bunch of godless blasphemous atheists.
The Founders' thoughts should certainly be taken into consideration when interpreting the Constitution, but there is no good reason why we should feel bound by their thoughts.
Larry, to be fair to SG, that quote you pull out is a summarization of the Os position, not an argument of his own making.
"The Constitution cannot have a fixed meaning because the world is not fixed."
Try to be serious, Larry: Nobody is defending a Constitution whose meaning never changes. Originalists defend a Constitution whose meaning changes only by formal amendment.
The fight isn't over whether the Constitution changes, but who gets to decide how it changes. The people the Constitution itself says have that power, or the federal government alone, with the states cut out of the loop.
And it's not just about enabling change, but also blocking it, as the mooting of the 27th amendment demonstrates.
>>>>>>"The Constitution cannot have a fixed meaning because the world is not fixed."
Try to be serious, Larry: Nobody is defending a Constitution whose meaning never changes. Originalists defend a Constitution whose meaning changes only by formal amendment. <<<<<
The Constitution is hard to change by formal amendment. There has not been a significant amendment to the Constitution since the 18-year-old vote in 1971. There has been talk about amending the Constitution to allow school prayer or restrict abortion, but nothing has gotten off the ground. The Constitution must often be applied as is, even if there doesn't appear to be a directly applicable constitutional provision.
Calvin TerBeek said,
>>>>> Larry, to be fair to SG, that quote you pull out is a summarization of the Os position, not an argument of his own making. <<<<<<
Yes, thanks for pointing that out. I overlooked that because I felt that the article was not sufficiently hostile towards originalism.
"There has not been a significant amendment to the Constitution since the 18-year-old vote in 1971."
I notice you just sort of elided out the 28th amendment. Which would have been reasonably significant, if the courts hadn't deliberately interpreted it so as to render it moot. It's actually quite illustrative: The states, by a quirk of history, find a generally popular amendment which is still pending. And manage to ratify it in relatively short order. Yes, the states, which are supposedly the obstacle to constitutional change, changed the Constitution. And the federal government, for all practical purposes, by interpretation, the new engine of constitutional change, undid the change.
The reason the Constitution isn't getting amended anymore via Article V isn't that Article V is "too hard". It's because, with the courts willing to interpret into the Constitution any change Congress and the President want, the Federal government doesn't NEED formal amendments to "change" the Constitution anymore.
CONGRESS is the obstacle to formal amendment, not the states. Because, what Congress wants, Congress gets, without the risk of states saying "No!". When was the last time Congress actually tried to get the Constitution formally amended? I'm not talking about carefully stage managed PR stunts like voting on the Balanced Budget or Term Limits amendments, carefully managing things so that they didn't inadvertently get enough votes to be available to the states to ratify. I mean actually TRIED.
It's been decades. And there are, I'd estimate, at least a half dozen amendments that have been suggested since then, that would be popular enough to be ratified. But they all reduce the power of Congress in one way or another, so Congress won't release them.
You guys all talk as if it's that 38 state ratification requirement that's the obstacle, when it's really the fact that Congress doesn't want the amendments the public wants, and doesn't need amendments for what they want.
Well, fortunately, Article V has an answer for that, too, and I suspect we won't make it another decade without a constitutional convention being called, to circumvent the REAL bottleneck. Always assuming, of course, that when the states call for one, Congress doesn't ignore the call, and the courts don't cop out by declaring the violation "non-judicable".
In short, it's rather rich: Living constitutionalists point to the fact that there haven't been any recent amendments as proof that Article V is broken, and it's the living constitutionalists themselves who broke it!
Mention of the "Military-Industrial Complex" as reason for the Iraq War and the atrocities being done for its survival seems tough for the MSM to digest. Thus I am putting this item in the blogs for all to see:
Whistleblowers on Fraud in Iraq Facing Penalties
Sorry if it not directly pertinent to this item. But you have got to read it!
Never memorize something that you can look up.Post a Comment
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