Sunday, June 08, 2008

Impressions from the AALS Conlaw Conference

Stephen Griffin

Back from the AALS conlaw conference in Cleveland, which I would rate as a success in terms of attendance and the sustained interest in matters conlaw showed by all the attendees. In particular, I thought there was a good mix, both on the panels and among attendees, of younger, mid-career, and older scholars. Several lawprofs at the conference were kind enough to tell me that they had read my Balkinization posts on originalism, which means they read Balkinization! So thank you again to Jack for allowing me to participate.

I won’t go through the program by panel, but you can get insight on what was said on at least two of the panels from Michael Dorf’s blog, Dorf on Law. I will share a thought or two from a small group session on executive power pedagogy. I have the impression most schools require one semester of conlaw, most at four credits. There is an understandable desire to balance cases on structure with rights cases, although at Tulane we take some of the edge off the latter need by having advanced courses in both Fourteenth Amendment and First Amendment, rather than the latter alone. So what tends to get left behind in the shuffle? Executive power! For all the important developments during the Bush administration, it seems separation of powers tends to get left behind in standard conlaw courses. This was distressing to me, as it is one of my favorite topics and I have set-piece presentations on war powers and impeachment, for example, in addition to the standard removal cases, plus Youngstown. But I do understand where other conlaw profs are coming from. If you don’t believe your students will take upper-level non-required conlaw, how can you teach structure without teaching rights? The only point I would make in reply is that separation of powers is the best chance to teach students something about the Constitution outside the courts.

A number of lawprofs noted my posts on Larry Solum’s “Semantic Originalism,” and, in effect, asked why they should read it given how well plowed the originalist ground has been. People have made up their minds about the validity of originalism and another article seems not likely to change anyone’s opinion. Perhaps because I am overly open-minded or less certain about my opinions than I appear to be, I did tell people that I thought Larry’s article was important. But they pressed and wanted to know why. So here’s what I said. Let me put this in terms of how Solum’s article critiques the standard assumptions of those who believe originalism is irredeemably flawed (I won’t say those people are “non-originalists” because I have spent some space explaining why I think that term is not helpful).

First, Solum’s article in effect argues that using two different theories of meaning to interpret the Constitution, one for the clauses that are “clear” or “hard-wired” and another for the vague clauses everyone is concerned with is incoherent. The Constitution may be unique in various ways but it is probable that if one theory of meaning is helpful in understanding how the clear provisions mean, then that theory will be applicable to the entire Constitution. Therefore we cannot ignore how the clear provisions mean in explaining how the vague provisions mean. Second, Solum critiques the idea that determining constitutional meaning is normative “all the way down.” Several conversations at AALS showed me this position has had a wide influence, although Solum claims it is rarely argued for explicitly. You could say the whole point of “semantic” originalism is to show this is false. Presumably if at least part of the meaning of the Constitution is determined on a factual, semantic basis then this disproves at least one version of normative all the way down. But I think we could go further and say if normative all the way down was true, we would live in a much different constitutional world, one in which the legal force of various clear provisions would be thrown into question as soon as it became relatively inconvenient for all parties. My intuition tells me this point has been made in many articles, so I will not elaborate further. And third, I think Solum’s article is basically successful in showing that a theory of semantic meaning, however applicable mostly to the clear provisions of the Constitution, is not trivial for that reason, despite the common assumption that it would have to be.

It’s true that Solum’s article is the size of a small book and perhaps has reached some sort of crossover in terms of opportunity costs incurred in the time it takes to go through it. My own recommendation in coming to grips with the article is to pay close attention to Parts I and III and ignore (at least initially) Solum’s criticisms of other scholars. That will produce a manageable text and you can make up your own mind.


“A number of lawprofs noted my posts on Larry Solum’s “Semantic Originalism,” and, in effect, asked why they should read it given how well plowed the originalist ground has been.”

I for one applaud Stephen’s efforts as more sprouts of originalism break through plowed and unplowed ground. Having studied ConLaw in the Fall of 1952, with the late Prof. Thomas Reed Powell, I was not then acquainted with originalism in the interpretation of Constitutional Law. (I had been exposed to Francis Lieber’s “Legal and Political Hermeneutics or Principles of Interpretation and Construction in Law and Politics” that I had purchased at a Morgan Memorial store in Boston perhaps in 1951 that had come from the library of the Boston law firm of Brandeis, Dunbar & Nutter. Over the years since, from time to time, I have referred to Lieber’s text and other sources, finally getting a better understanding of hermeneutics after studying Hans George Gadamer’s “Truth and Method.”)

I do not recall Prof. Powell referring to originalism during his course. I have noted in earlier comments at this Blog Prof. Powell’s James S. Carpentier Lectures at Columbia in 1955 bearing the title “Vagaries and Varieties in Constitutional Interpretation” published by Columbia University Press. I do not recall Prof. Powell referring to originalism in these Lectures. Please bear with me regarding the following closing comments of Prof. Powell (pages 212-215):

“This is the close of the appointed series, though there are various other fields of constitutional law that might be surveyed for further elaboration of my theme of ‘Our Undulant Constitution,’ which was my initially conceived title. This sounded somewhat like a fever, and ‘undulating’ would have been more descriptive than ‘undulant.’ The most serious area of constitutional law not covered by this cursory survey is that of constitutional restrictions in favor of liberty and property. This includes due process restrictions against both Congress and the states, the equal protection and the obligation of contracts barriers against state discriminations and retroactive frustration of public and private contracts, the special fields of civil liberties and procedures of criminal prosecution applicable with respect to the states and to the nation, the distribution of power between three departments of government, limitations on state and national taxation, and a few others. If this were a treatise, all these and more would have to be covered. Police power is perhaps the most serious omission, but the decisions so obviously support and exemplify my thesis that they would afford an instance of res ipsa loquiter.

“I am not one who favors the reporting of constitutional law by invoking the various constitutional clauses as chapter headings. The dictionary method of cataloguing the meaning of words seems to me undesirable when various clauses may bear upon the same issue and when it is not the meaning of words that usually determines the decisions. The decisions may in some cases determine the meaning of words, but usually with this are often intertwined issues of public policy, and analysis of intricate practicalities in fields outside the law to which the law must be applied. An interesting approach to the classifications of constitutional determinations by the judiciary is that of Hugh Evander Willis, formerly Professor of Law in the University of Indiana, who takes Dean Pound’s classification of interests, such as the security of transactions, and under each heading gives first the common law regulations, then the statutory ones and the judicial pronouncements on the constitutionality of the statutes. I used to think of the due process clause as a prescription of anarchy, a realm of no-law. This was wrong. It may be the creation of zones into which executives and legislators may not enter or many [may?] enter only in certain ways, but it should be borne in mind that without statutes much of human conduct would be subject to common-law restrictions, though the methods of enforcing them would often be spasmodic and cumbrous.

“This study of vagaries, variations, and irregularities in the constitutional law manufactured by the judges should not close without mention of others on which judges have never passed. The first has to do with the written word. The Articles of Confederation provided that the union created thereby should be perpetual and that no change should be made therein except by the vote of the Congress and ratification by the legislatures of all the thirteen states. The Framers provided that the proposed Constitution should go into effect after ratification by conventions in nine of the thirteen states. I at one time assumed that ratification by conventions instead of by legislatures rendered the Constitution forever unconstitutional under the Articles of Confederation. I have since changed my mind. The legislatures participated by calling the conventions, one somewhat belatedly. Congress approved of transmission to the states though rather pro forma. But the national government was organized before Rhode Island and North Carolina ratified. This was secession by eleven states. The Constitution did not become constitutional until the other two states duly ratified. It then became constitutional even though the ratification was somewhat the fruit of coercion.

“Even though all the thirteen original states duly ratified the Constitution in form, there was enough economic coercion on Rhode Island and North Carolina to make their adhesion far from their wholly free will. Also, in the aftermath of the War between the States, there was complete coercion to secure ratification of the Fourteenth Amendment from the six unreconstructed states. They were not to be represented in Congress until they ratified, and the legislatures that ratified were chosen by an electorate with qualifications and disqualifications specified by Congress and administered by military governors. Even if the end might have been achieved by wholly disregarding these southern states, that was not the method chosen. Another blot on the constitutional escrutcheon is the assumed consent of Virginia to the creation of West Virginia as an independent state. One might even suggest that the separation of the thirteen colonies from the mother country contained elements of the extralegal. Fortunately, even in tracing the titles of real estate, there is not infrequently needed the saving grace of prescription. Prescription may need to be invoked in making acceptable the course of constitutional history and of constitutional law.”

Looking back from our vantage point some 53 years later, is the correct prescription for constitutional interpretation originalism (with its own expanding vagaries and varieties), living constitutionalism, hermeneutics or something else?

Thanks as always for posting, Shag! I'm glad we have someone on the list who took conlaw with one of the greats!

Take a look at this post:

"The right to a gun? You could look it up" by Stephen P. Halbrook, who uses Noah Webster's dictionary at the time of the Bill of Rights to support an individual right to keep and bear arms. Prof. Powell must be spinning in his grave with this dictionary method of interpretation of the Second Amendment. Let's see what the decision in Heller will be.

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