Sunday, November 04, 2007

David Strauss on Liberals and Originalism-- Round One

Guest Blogger

David Strauss

Cross posted at University of Chicago Law School Faculty Blog

In two recent and very interesting articles (here and here), and in a number of blog posts (here, here, here, and here), Jack Balkin has argued that liberals should start being originalists. Other important scholars have taken the same position. I don’t think that’s a good idea, and I’m grateful to Jack for giving me the chance to debate him on our law school faculty’s blog and on his own blog.

There are at least two reasons why it’s bad idea for liberals to embrace originalism. The first is that originalism is not a good approach to constitutional law; in fact, I’m not sure it’s an approach to constitutional law at all, as opposed to a kind of rhetorical trope. It’s a way of invoking the authority of earlier generations for a position that is actually justified on other grounds. If that’s right, then no one, liberal or conservative, should be an originalist.

The second reason is that I think originalism may be, in its nature, illiberal. That’s because—I’m not sure of this, but I’m afraid it might be true—originalism relies on a kind of parochialism and American exceptionalism that liberals, especially, should reject.

1. “Originalism” can mean several different things. Jack is very careful in specifying the kind of originalism he has in mind. He says that what is binding is not the “original expected application” of a constitutional provision, but rather the “original meaning” of the text of the provision and the “principles that underlie the text.”

The difference can be illustrated with the Eighth Amendment’s prohibition against “cruel and unusual punishment.” It’s clear that when the Eighth Amendment was adopted, no one thought that it would outlaw capital punishment. The “original expected application” approach says that therefore capital punishment can’t be unconstitutional under the Eighth Amendment. Jack would proceed differently: he would say that the question is whether capital punishment is “cruel” according to the original meaning of that word and the principles underlying the prohibition. The answer to that question might be that capital punishment is indeed cruel and is therefore unconstitutional.

There are lots of problems with “original expected application” originalism, many of which can be seen by asking a question like: What was the original expected application of the First Amendment (adopted in 1791) to a law regulating indecency on the internet? (That might seem like an unfairly chosen example, given the spectacular newness of the internet, but I don’t think it’s unfair; it just makes some of the problems of originalism vivid.) But that’s not the form of originalism that Jack embraces—he’s quite critical of it—so I’ll leave it alone for now.

The problem with “text and principles” originalism of the kind Jack endorses is that it allows us to justify pretty much anything. I think it is a sophisticated iteration of what might be called the “levels of generality” maneuver. Here is how that maneuver works. Suppose you are trying to justify Brown v. Board of Education on originalist grounds. It’s pretty clear that when the Fourteenth Amendment was adopted, people did not think it made school segregation unconstitutional, pace my friend and former colleague Judge Michael McConnell. So if you’re an originalist, and you want to justify Brown, it looks like you have a problem.

But what if you recharacterize the original understanding, in a way that is no less accurate? Yes, they didn’t think they were outlawing school segregation. But they (the drafters or ratifiers or whoever the relevant group is) did think they were requiring racial equality with respect to certain important rights. If we conclude, today, that—contrary to the understanding in 1868—education is such a right, and segregation is inconsistent with equality, then, presto, Brown is a faithful—indeed mandated—implementation of the original understandings.

I think that is essentially what Jack has done in one of his papers, which argues that there is an originalist justification for a Fourteenth Amendment right to an abortion (and also, if I read him correctly, an originalist justification for Lawrence v. Texas, which invalidated laws forbidding same-sex sodomy). Of course no one in 1868 remotely thought that they were protecting abortion rights or gay rights. That was even more remote, by orders of magnitude, than invalidating racial segregation in schools. But the Fourteenth Amendment, Jack says, is about outlawing class- or caste-based legislation. And laws forbidding abortion constitute class- or caste-based discrimination against women. So we have an originalist justification for Roe v. Wade.

This is all OK as a matter of rhetoric—it’s fine to try to enlist the Framers on your side, if your cause is just—but I just think it is not a helpful way to address constitutional issues. I think what Jack has done is just to kick up the level of generality until he’s reconciled Roe and originalism. But what justifies the move up the ladder of generality, from “equality with respect to common law rights” (roughly, the central subject of discussion when section 1 of the Fourteenth Amendment was adopted), to “racial equality,” to “no caste or class legislation”? And why stop there: why not say that the Fourteenth Amendment is about equality and fairness, full stop, so that any laws that we consider unequal or unfair are unconstitutional?

There are two problems here, and I don’t think Jack’s key notions—“meaning” and “principles”—give us much help with either. One is the question of where to stop this ascent. But even if we knew that the right way to think about the Fourteenth Amendment is that it forbids class or caste legislation—not at a more specific or more general level—it seems to me that the judgment that some particular law constitutes caste or class legislation is one that we make on some other basis; and that basis is concealed by the invocation of originalism.

So: Why does the Fourteenth Amendment forbid anti-abortion laws, or discrimination against gays, or school segregation, but not the progressive income tax or rent control—laws that which can be (and are, by some) characterized as “class” legislation? Or, for that matter, why aren’t the Bush tax cuts unconstitutional because they were “class” legislation? Or maybe their repeal would be? Or perhaps the war in Iraq is unconstitutional because certain social and economic classes are so heavily represented in the front-line military? And so on.

There are answers to these questions, but I don’t see how you get them from originalism, however originalism is defined. You have to get them from somewhere else—whether you give “liberal” or “conservative” answers. My own view is that they come from an amalgam of precedent and normative reasoning that is characteristic of the common law, but that’s another subject. The main point is that I don’t see how the invocation of originalism helps us to analyze these issues, or to justify the positions we take. Something other than originalism is doing that work, and talking about originalism just obscures that fact."

2. I am less sure about my second argument, but if it is right, then it is more troubling, because it suggests that originalism is not just empty but maybe even pernicious. Thomas Jefferson posed a famous challenge to the use of written constitutions: essentially, that adhering to a constitution adopted by a previous generation is a form of irrational ancestor worship. I think there is a way around Jefferson’s objection in certain kinds of cases: sometimes, adhering to an old text, or even to original understandings, can be justified for reasons that have nothing to do with ancestor worship. For example, it is a good thing that we know how long a President’s term is and when he must leave office, and you don’t have to worship our ancestors (or even like them) to realize that it makes sense to rely on the Constitution to settle those matters.

But when you start to use old, abstractly-worded provisions of the Constitution to resolve highly controversial issues, then you have Jefferson’s problem. Why exactly, to choose a pressing example, should the attitudes that late-18th or mid-19th century people had about firearms determine an important issue of pubic policy in the incomparably different world of today? You can substitute any number of things for firearms in that question (“gender roles,” but also “jury trials”); it is not a liberal or conservative concern.

When originalists—liberal or conservative—try to answer questions like that, they usually, and I think unavoidably, start slipping back into ancestor worship. The central idea seems to be that we owe it to the earlier generations to maintain some kind of continuity with them. So there are invocations of “fidelity,” veneration of the text of the Constitution, talk about conversations among generations, assertions about American traditions—things like that.

This seems to me a troubling way to think about constitutional law, and it should be especially troubling for liberals. There should be room in our society for people who do not feel any affinity to American traditions and who do not especially want to be in a conversation with (someone else’s) ancestors. The decisions we make on matters of constitutional law will affect those people, and we ought to be able to give them an account of how we make those decisions that relies only on the demands of reason. Of course, any nation’s institutions will be, in significant part, the product of historical accident. But there are often sensible, functional reasons for accepting those accidental institutions. Once we get past those reasons and begin to rely on the distinctive American-ness of something as a justification, we run the risk of being parochial and exclusionary.

Jack has written eloquently and effectively about the dangers of what he calls “idolatry” in constitutional law, and I am certain he and I do not disagree in principle on this point. Also, Jack’s version of originalism allows a wide range for arguments based on reason alone—that’s why I question whether the originalism component is more than a rhetorical device. But I do wonder if even the invocation of originalist rhetoric is something that liberals, especially, should be wary of doing.


Professor Strauss:

I am less sure about my second argument, but if it is right, then it is more troubling, because it suggests that originalism is not just empty but maybe even pernicious. Thomas Jefferson posed a famous challenge to the use of written constitutions: essentially, that adhering to a constitution adopted by a previous generation is a form of irrational ancestor worship...There should be room in our society for people who do not feel any affinity to American traditions and who do not especially want to be in a conversation with (someone else’s) ancestors. .

To start, the fidelity of originalism is fidelity to the original meaning of the law because we are a nation of laws and not of men. This is not "ancestor worship."

To allow citizens who do not feel an affinity for the law to ignore its original meaning to suit their personal purposes is pernicious indeed to the rule of law.

When the citizens who do not feel an affinity for the law are unelected judges given the final word in interpreting the law, then ignoring the original meaning of the law is pernicious indeed to our republican democracy.

I do not see much effective difference in Professor Balkin's "originalism" and the penumbral rewriting of the Constitution by the Roe Court.

The Roe Court generalized several guarantees of specific kinds of privacy in the Bill of Rights to one general right to privacy broadly enough to allow a mother the privacy to kill her unborn child.

Similarly, as is noted in this critique, Professor Balkin generalizes the specific concept of equal application of the law to a general prohibition of any "class or caste legislation" broad enough to encompass a mother's right to kill her unborn child under the theory that legislation barring the killing of unborn children is "class legislation" because only women can become pregnant.

Neither approach can be fairly called faithful to the original meaning of the law when the law is generalized to the point where it no longer has any real meaning.

The interesting thing about the text and principles approach -- a version of originalism that is congenial to liberals if any -- is that it offers a sophisticated alternative to the "new originalism" of Barnett, Paulsen, Whittington, Prakash, McGinnis, so on and so forth, that is decidedly conservative in bent (or in the case of Barnett, a cover for his libtarianism). IOW, it's a much more sophisticated version of Dworkinian constitutional interpretation (for what it's worth, I've never found Dworkin particularly persuasive). So that's the usefulness of Prof Balkin's approach.

That said, I agree with the post's general thrust. Sometimes it seems that originalism is still viable simply by fiat: originalists talk about how robust the theory is, therefore it must be so.

But even as originalism works itself pure theoretically (Paulsen's phrase (and something it seems to be taking an esp. long time to do)), it is painfully apparent that it has never been the dominant approach in practice as an empirical matter, nor is it likely to ever be. Even the two originalists on the Court are far from pious adherents.

Originalism is not the panacea its adherents, esp. its conservative adherents, think it is. I'm surprised that we continue down the grand constitutional theory path. Shouldn't we have convinced ourselves by now that there an overarching elegant theory doesn't exist for constitutional law? Constituional interpretation isn't physics. As Prof. Farber said nearly 20 years ago (and I paraphrase) shouldn't we give up on the theorizing and get on with the interpreting?

*Also, Bart go back and re-read Roe. It is common conservative trope to use WD's Griswold op to denigrate Roe as being part of the "penumbral" theory of const interpretation. It's decidedly not. HB clearly relied on SDP/liberty found in the 14th Am. No justice, not a single one, has even picked up on WD's penumbral approach and ran with. Although you might be interested to know that OWH used the formulation in an opinion and the word appeared in a number of the Court's opinions pre-Griswold.

Don't believe me?

See: While Justice Blackmun’s opinion does mention “a right of personal privacy, or a guarantee of certain
areas or zones of privacy,” and does cite Justice Douglas’s penumbral formulation in Griswold, the Court stated
that it believed that the right of abortion is found in the Due Process Clause of the Fourteenth Amendment. Roe,
410 U.S. at 152-53; see also Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Therefore, it clearly disavows
Justice Douglas’s formulation, and no justice has ever advocated a return to that formulation. See POSNER, SEX
AND REASON, supra note 17, at 336 (the Roe Court did not try to elaborate on Justice Douglas’s formulation, but
“instead switched . . . to the more conventional, but no more satisfactory, ‘substantive due process’ ground”);
Posner, Legal Reasoning, supra note 87, at 445 (discussing Justice Douglas’s general (or at least generalizable)
“principle of sexual liberty” and explaining that “no judge has picked up this particular spear and tried to throw
it farther”).

See also: It is worth noting that the penumbral formulation so often mocked by conservatives was used, prior
to Douglas’s invocation, “more that twenty times in previous Supreme Court opinions,” and a jurist no less
deified than Oliver Wendell Holmes used it in a law review article and “in four Supreme Court opinions.”
GARROW, LIBERTY AND SEXUALITY, supra note 53, at 264. Learned Hand, Benjamin Cardozo, and Felix
Frankfurter also made use of the term. Id.

"But what justifies the move up the ladder of generality... ? And ... why not say that the Fourteenth Amendment is about equality and fairness, full stop, so that any laws that we consider unequal or unfair are unconstitutional?"

I think we should answer the generality problem by taking the sense historically expressed by the text as our supreme-law-of-the-land interpretive touchstone: not the tangible expectations that the framers expected their text to produce--that's too low--and not the purposes for enacting the text--that's too high. The reason we should take an equal-citizenship principle as the touchstone is that, in its historical context, the text of the Fourteenth Amendment--"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"--expresses that principle. (That may not be obvious on the face of the text; as I see it, the key word that we need historical investigation to unpack is "of.") "No Black Codes" is more specific than the text, and "No improper laws" is less specific.

"There should be room in our society for people who do not feel any affinity to American traditions and who do not especially want to be in a conversation with (someone else’s) ancestors."

Maybe that's right, regarding our society. But does there need to be room for such people among those who swear oaths to obey the Constitution? I don't think someone who feels no affinity for American traditions has any business swearing an Article VI oath.


The Roe Court reviewed the case law creating a penumbral general right to privacy out of the Bill of Rights and then extended it to the 9th and 14th Amendments, which do not in fact refer to privacy at all.

It is generally recognized by most commentators that the penumbral general right to privacy created in Griswald was a stepping stone to Roe.


Not sure if this is the place for a doctrinal discussion.

Apparently, you didn't take my advice to actually pick up HB's opinion. The opinion clearly states " . . . or as we think it is, in the due process clause of the 14th Amendment" (from memory there) and *rejects* (implicitly) the district court's 9th Amendment opinion.

Furthermore, as you might have noticed, no majority opinion since Roe has mentioned the 9th Am or WD's penumbral formulation. In fact, the Court generally declined to analyze the constituional/textual foundations for the abortion rights preferring to take it as a given and instead skip directly to the challenged regulations. It was not until Casey that they did so and reaffirmed the SDP/liberty basis for the abortion right.

Finally, the *result* in Griswold was surely helpful to getting the Court where it wanted to go in Roe, however, the commentators you mention miss the real doctrinal father of Roe: Eisenstadt.

hangzhou7906 makes an interesting point. If the constitutional pronouncements of the courts are so distant from the actual text of the Constitution (see Roe) that the connection is inexplicable to the ordinary citizen, then we might as well have a Constitution written in Chinese.

When the language of the Constitution is relatively clear and specific (eg, presidential term is 4 years), then there is no real problem with the courts invalidating legislative acts that conflict with that language. It isn't a question of ancestor worship (any more than following laws passed by prior Congresses is ancestor worship).

But if the language is broad and open-ended (no cruel and unusual punishment), then the question of judicial legitimacy has to come into play. I have no problem with the argument that capital punishment is cruel, even though it was not considered to be so in the time of the Framers. I have a big problem with the assertion that capital punishment can be banned because 5 Justices consider it to be cruel.

Any theory of constitutional interpretation should take into account the purposes for which it is being used. If it is being used to justify judicial nullification of legislative acts, then it should provide an objective basis for such judicial action. In some (perhaps limited) circumstances, originalism can provide such an objective basis. But I agree with Professor Strauss that if originalism is being used at such a level of generality that it can justify anything, it is serving no useful purpose.

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