Wednesday, November 30, 2011

Constitutional Theory is Like Toothpaste

Gerard N. Magliocca

We have now found the heart of our disagreement. Jack and some other scholars view originalism (in its more expansive form) as an interpretive theory that is doing meaningful work. I believe, by contrast, that it is now just a brand name that is getting close to becoming a generic term for interpretation. Indeed, originalism may be the most powerful brand ever developed by constitutional theory, which explains why it is being embraced by so many and why it is probably inevitable that it will lose its distinctiveness.

Let me start by saying that I think there is virtually no difference between how Jack and I would approach a constitutional issue, though we would not always agree on the result. He says that he is an originalist. I say that I am not. Does that matter? Well, I suppose not, though I prefer to define my approach rather than having it defined by others.

The more relevant point is that it's getting harder to know what originalism is. Jack is correct to say that not everything can be called originalist. As he points out in his book, if a court says that each state gets four senators, that would not be an originalist interpretation under any definition. Since everybody knows that, though, that isn't helpful to me. Moreover, I think that Jack is wrong when he says that Ronald Dworkin and David Strauss cannot be called originalists under the current meaning of that term. Presumably, they also think that we are bound by the original public meaning of the "hard-wired" constitutional provisions. They just disagree on how we should interpret the original principles that are in the text (such as due process, equal protection, and the Ninth Amendment). Of course, they would not call themselves originalists. And there are important differences between what they do and what many self-professed originalists do. But are they clearly not originalists nowadays? I don't think so.

There is an analogy here to what happens with great constitutional cases. At first, the contest is over whether the case was correctly decided. Eventually, though, a case becomes settled law and the debate turns to a fight over the meaning of that case. Everyone today, for example, thinks Brown is right. They do not agree, though, about what Brown means. Is that a bad thing? Not necessarily, though some might say that the invocation of Brown to support certain results is misleading. The same could be said for originalism. Are we better off with a broad originalist umbrella or a narrow one? Both can work. Instead of "originalism" versus "living constitutionalism," we have "living originalism" versus "expected application originalism." Why is the latter the way things are headed?

The answer is that more and more people are now convinced that originalism (whatever that actually means) is the right way to interpret the Constitution. This is a lasting legacy of the conservative legal movement, and is a subject on which Jamal Greene has done some terrific research. But does that branding improve our understanding of the Constitution?

This will be my last post on this thread (largely because I won't have much time for blogging in the next few days). I do want to close by saying that I have tremendous respect for Jack's work in this area despite my dissent to some of his conclusions. As a wise judge told me many years ago, even the best dissent just means that you failed to persuade the majority.


I'm not sure I understand Prof. Balkin's criteria, or at least the first one. It says, emphasis added,

"1. Something (whether we call it original meaning, original intentions, or original understandings) is fixed at the time of adoption or amendment of a constitution..."

The word "something" strikes me as too broad, ignoring the parenthetical. I assume everyone agrees, for example, that the text was fixed at the time of adoption or amendment.

In this light, I'm not sure the description of Strauss' theory is accurate. A common law theory of interpretation starts with the text, it just doesn't end there. While the interpretation might change over time, it can never contradict the text as I understand it.

If I'm correct on this, it's hard for me to see how Strauss differs from Balkin.

Please note however: the branding to which you refer did not just happen. Movement conservatives and big money are involved here. Whatever scholarship is going on under the term "originalism", there's also a lot of selling. The former may shed light; the latter blows smoke.

For those interested in some comparatives of Balkin and Strauss, who travelled together to Boston University Law School for a seminar on their respective new and perhaps conflicting books just several weeks ago, access BU Law's website for several faculty papers commenting on their books. I attended part of the six hour session which was quite enjoyable. (I reported on this in a limited manner in a comment or two at this Blog on earlier posts.)

While Gerard is not an originalist, I don't know if he is in the Strauss camp. But I do not recall Jack saying anything at the seminar suggesting that Strauss did not have a dog in the fight on originalism.

So kudos to Gerard for standing up for nonoriginalists, despite the piling on by originalists in addition to Jack; I note that Larry Solum has joined the critique of Gerard as has the Originalism Blog. Perhaps we can soon expect Randy Barnett with more originalist long-knives to slash away. For fellow nonoriginalists who wish to see more ado, check out Jamal Greene's interesting articles on originalism available at SSRN. I agree with Gerard that Greene has done some terrific research on originalism. Several years ago I touted Greene for the Supreme Court to counter you know whom who in good health - or bad - may be at SCOTUS for too many years (thanks to Bush-41). And let's not forget some of Jack's Yale colleagues at Yale who have effectively challenged originalism over the years.

Yes, those of us who respect the Constitution have a nonoriginalist dog in this fight, especially to counter Jack's proselytizing since his conversion. So let's hear it from more nonoriginalists. Sandy?

I note that Larry Solum has somewhat tempered his critique with his post on this most recent post by Gerard. But Larry's Tareyton branding comparison to Gerard is a tad disingenuous because of the nastiness of tobacco. Is originalism vs. nonoriginalism getting a bit too adversarial? Maybe Randy Barnett has been handing out joints since Raich to convert more to originalism. In any event, smoke if you've got 'em.

Mark, the "something" is intended to be too broad. It's how one escapes being bound by the actual text of the Constitution: By extracting high order principles from the text, and then applying them in place of the text.

By the Bybee [expletives deleted], Paul Horwitz at Prawfs has outed himself as the anonymous author of "Our Boggling Constitution; or, Taking Text Really, Really Seriously" that appeared in Constitutional Commentary last year. Go to Prawfs to download from SSRN. The Introduction starts with this:

"Textualism is at a dead end."

Can originalism be far behind or at least parked in a cul-de-sac?

Mark, the "something" is intended to be too broad.

It's broad since there are so many types of originalism -- again I'm just focusing on non-Balkin types here -- so when discussing it, you basically have to be broad.

It's how one escapes being bound by the actual text of the Constitution

Or, not reading in bad faith, again, he is talking about a very broad class of interpretation here, in each case not trying to "escape" from the "actual text" though the "actual text" alone w/o structure, doctrine etc. alone has never been all that is used.

By extracting high order principles from the text

text originally broadly phrased in various places as well as at times providing contrasting things (free speech v. fair trial, association rights v. equal protection in public accommodations etc.) thus requiring that in various cases

and then applying them in place of the text

applying them along with text.

I subscribe (under a different name) to Constitutional Commentary and had earlier read Paul Horwitz's anonymous article. But I decided to reread it and am about a third of the way through its 26 pages. It is hilarious. Readers should pay careful attention to the footnotes as they contain a great deal of hilarity as well. For those who are too lazy to check out Prawfs' website for a direct link, the article is available at:

In quoting earlier the brief first sentence of the Introduction to Horwitz's article, I neglected to include footnote 1:

"1. This helps distinguish it [textualism] from its cousin, originalism, which is merely at a dead hand. See, e.g., Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 Colum. L. Rev. 606 (2008)."

So perhaps Gerard's "brief" in further rejoinder to Jack could endorse Horwitz's article in support of his position. A lot of laughs at 30 paces!

By the Bybee [expletives deleted], we haven't had a post from Adam Samaha for some time. (Hint, hint!)

As I see it, most of the contested provisions in the Constitution are written at a high level of generality. Applications of those principles don't override the text, they affirm it.

As I see it, the currently most contested clause of the Constitution, the commerce clause, is quite specific. It's just that it's being interpreted in such a way as to render most of it's carefully crafted qualifying language toothless. You know, the part that follows after 'to regulate'?

CJ Marshall, who was there so to speak, disagrees, Brett.

In Gibbons v. Ogden, he spoke of "commerce" being "a general term, applicable to many objects."

Looking at the text and what it meant at the time, various constitutional scholars (as did people in that era) dispute its breadth, some reasonably arguing that the Supreme Court if anything defines it too narrowly, only speaking of "economic" behavior when the term is "commercial" which arguably has a wider reach.

The proper range of state and federal power ("interstate") also was disputed respecting that clause from the start. The text alone doesn't settle the dispute.

Marshall wasn't just "there so to speak", he was actually there.

Brett's real problem is with the N&P clause, not the commerce clause (though he does have a pre-Constitution view of that as well).

Try to let a guy off softly ...

Gerard closes this post with this:

"As a wise judge told me many years ago, even the best dissent just means that you failed to persuade the majority."

But this does not mean that Jack Balkin has persuaded the majority, at least not yet.

Imagine if one studied constitutional law pre-Ed Meese's epiphany, then succumbed to a Rip Van Winkle and recently aroused from slumber, to learn of the new "Three Rs" of constitutional law: "Restoring" (Randy Barnett), "Rehabilitating" (David Bernstein) and "Redemption" (Jack Balkin), and now the Holy Grail of interpretation/construction of constitutional law by means of the ultimate merger of constitutional theories with Jack's "Living Originalism." Are we now witness to: "The End of Constitutional Law" (in the manner of Francis Fukuyama)?

No, just an effort by the unpopular side of a public debate to steal the popular side's name. Something like the Fabian socialists did to liberals at the turn of the last century, which is why today's liberals have to call themselves "classical" liberals to distinguish themselves from leftists.

Let's be frank about this:

Jack Balkin is not an originalist.

And we should not humor his pretension of being one, it just debases the terminology. Which, in the end, is the point of him calling himself an originalist: To unmoor the term from any fixed meaning, so that it's foes can appropriate it for themselves, leaving the actual originalists looking for a new name.

No, there are no living originalists, any more than there Lamarckian Darwinists.

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Brett volunteers an answer to my rhetorical question with:

"No, just an effort by the unpopular side of a public debate to steal the popular side's name."

Apparently Brett hasn't bothered to read Jamal Greene's analysis on public views on originalism in his conclusion that originalism is the "popular side." Brett seems to be in a "high school" mode on this.

Brett goes further:

"No, there are no living originalists, ...."

That's in line with Paul Horwitz's once Anonymous article cited earlier as set forth in footnote 1: "This helps distinguish it [textualism] from its cousin, originalism, which is merely at a dead hand." [Imagine incest!]

Brett continues to demonstrate that there is no balm that can cure his chronic case of "Wick-burn," to put it perhaps more 'softly" than Mark but perhaps a tad more harshly than Joe.

Let's be frank (don't call me Frank!) about this and point out that "originalists" -- again don't worry about Jack Balkin -- are so flexible with the term that Balkin's version of it is as valid as the next person.

This includes the "popular" view -- the "popular" view wasn't the stance of a professor in a recent 40th anniversary discussion (with Justice Ginsburg in attendance, it's available online) of the sex discrimination case Reed v. Reed who forthrightly noted that his approach would call into question Brown. It is the "cafeteria" Catholic approach that likes the strict sounding label but in practice in quite loose.

So, don't blame Prof. Balkin. The door was left wide open. I say this not only to Brett but various other at times sanctimonious critics.

Brett's closing line:

"No, there are no living originalists, any more than there Lamarckian Darwinists."

seems to be missing the word "are" between "there" and "Lamarckian." I mention this not be picky, but to try to better understand Brett's mindset. Does Brett's thought reveal that he is not a believer in evolution, whether of Lamarck or Darwin, but rather a creationist? If so, then perhaps Brett's originalism is based upon originalism creationist Ed Meese in the 1980s of "original intent" lame fame; that the changes in originalism since Paul Brest's most effective refutation of "original intent" from the 1980s to date (most currently Jack Balkin's Living Originalism) are meaningless. Perhaps this is because, as Paul Brest pointed out, the foundation of "original Intent" was meaningless. Ergo, ....

Shag, I've had typing problems like that ever since I went through the chemo, though thankfully they're gradually easing. Part "chemo brain", part peripheral neuropathy, I suppose. I'm a touch typist, but words have been getting lost between my composition and my fingers. (That said fingers can't feel the keys so well anymore doesn't help.) So, no insight into my mindset, just into my medical status.

No, I'm a firm believer in evolution, and not Lamarckian, either.

The point here is that what's of value in originalism is just precisely that it isn't living. It's the fixity of originalism, the requirement for formal procedure to change, which is what's valuable in originalism.

But that's exactly what Jack has designed out of his version of 'originalism', and not by accident. That's why I won't agree that he's an originalist: What's most of value in originalism is what he saw as most objectionable, and got rid of.

Brett said...

As I see it, the currently most contested clause of the Constitution, the commerce clause, is quite specific. It's just that it's being interpreted in such a way as to render most of it's carefully crafted qualifying language toothless. You know, the part that follows after 'to regulate'?

Hell, they are currently attempting to rewrite the negative regulate into the affirmative mandate.

"It's the fixity of originalism"

There isn't an 'fixity' when (1) the definition keeps on changing among true believers (2) it is used to defend things like Brown which requires some change.

Most everyone thinks there is some need for the "formal procedure" to change. Few think Presidents can suddenly be qualified at 34 or it we push things back from Jan 20 to December 20, no amendment is req.

Few originalists don't think certain things change. "Reasonable" in the 4A depends in some fashion on current law.

I continue to say you are blaming the wrong person. Balkin walked thru an open door and you are blaming him, not the one who left it open.

Joe, while there have been refinements of originalism, it's still the case that, leaving aside outliers such as Jack, the emphasis of originalism is on fixity, with refinements on what's fixed.

And, again, I direct your attention to the commerce clause. As well as Congressional efforts to grant legislative seats to non-states.

Really, the only limit on living constitutionalism seems to be what living constitutionalists think they can get away with at any given moment. While the text plays a part in that, it's the text's effect on people who aren't living constitutionalists.

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The ironic thing is, of course, that originalism is the least fixed of any of the various interpretive systems available. The historical evidence generally doesn't exist or is ambiguous, so originalists simply make shit up and call it "fixed".


"It's the fixity of originalism, ...."

brings to mind an analogy of Brett's fixity originalism for the Constitution with getting a cat spayed. That sort of fixity may not significantly negatively impact the health and life of the cat (including its sex life), but, alas, the cat can't procreate. Just imagine what America would look like today with fixity originalism of the Constitution - a dead cat Constitution -, assuming that the fixity can be accurately determined hundreds of years later in an objective manner. (Keep in mind that Ed Meese's "original intent" originalism surfaced just short of 200 years after the original Constitution/Bill of Rights. As noted in an earlier comment, following Paul Brest's demonstration of the folly of "original intent" originalism, many variations came about. Brett makes it clear that he believes in evolution (Darwin). But regarding the recent vintage of originalism begat by Ed Meese, does Brett believe originalism has not evolved from Meese's discredited "original intent" originalism? Maybe, just maybe, Brett can demonstrate that back in1789-91 there was solid, objective proof that the framers/ratifiers had originalism in mind for interpreting/construing the Constitution/Bill of Rights.)

Presumably the framers chose words to convey what they meant, and intended that the words be understood to convey what they meant. This is a structural inference from the fact that they did not randomly select letters, and permit the readers to re-arrange them into words. But see Our Boggling Constitution.

mls focuses upon the framers and seems to neglect the ratifiers in determining what the words meant at the time, not just to the framers but also to the ratifiers, as well as perhaps the educated public (for a current view of originalism). The means of determining what the words meant at the time to the framers/ratifiers/educated public - all of them? - is not a simple matter. It should be kept in mind that the Constitution as amended does not provide a specific provision for its interpretation/construction. "Presumably" and "structural inference" are a weak foundation for originalism back then as compared to a specific provision. "Presumably" and "structural inference" could also yield a recognition that the framers/ratifiers/ educated public understood that unanticipated (by them) circumstances would have to be taken into consideration in the meaning of the words over the years.

By the Bybee [expletives deleted], the Introduction and Part I of Horwitz's article, while hilarious, at the same time point out serious questions concerning constitutional interpretation/construction, sort of in the manner of Jon Stewart and Stephen Colbert.

Presumably the framers chose words to convey what they meant, and intended that the words be understood to convey what they meant.

Who says original intent is dead?

Granting this to be true -- and it's got huge holes in it -- that still doesn't answer a key question: to whom were they speaking? Only those people alive in 1788-9, or to future generations as well? If the latter -- which is true -- then we are just entitled to interpret those words as the Framers themselves.

the emphasis of originalism is on fixity, with refinements on what's fixed

This is akin to saying that deists believe in a fixed entity (God) and the various versions just debate on the details.

It leaves so much room for maneuver & again given Brown et. al., what they say is "fixed" again is not really THAT fixed.

And, again, I direct your attention to the commerce clause.

Balkin wrote a long article on the Commerce Clause doing just what originalists want people to do -- looking at the text and the history behind it. The result was too open-ended for some people. Didn't make it non-originalist.

As well as Congressional efforts to grant legislative seats to non-states.

Every side has some inanity.

Plus, Orin Hatch, who I assume alleges he is an originalist, supports that bill as do others who filibuster people for not being originalist enough.

Really, the only limit on living constitutionalism seems to be what living constitutionalists think they can get away with at any given moment.

You aren't convincing when you selectively look at one side, when "originalists" bounce all around and repeatedly do the same thing.

There are many parts of the Constitution that draw hard lines. The fact you disagree with them on some, like a clause that was greatly debated from the Founding (and since you don't agree with John Marshall, I simply don't know what "originalist" is supposed to even mean really), that are more open-ended doesn't change this.

While the text plays a part in that, it's the text's effect on people who aren't living constitutionalists.

I don't know what this means, since the term is used so loosely as is "originalism" so that it eventually sounds that it depends on who's ox is being gored.


I stick with the legal mind who referred to a panel of rabbis telling G-d to not interfere when they were determining the meaning of the Torah. G-d gave it to "his" creation and now, for better of worse, it's our job to interpretation it.

This applies to each interpretative method; some just try to claim to be more legitimate by accusing the others of not really following the true word.

While their posts do not accommodate comments, I welcome Ken Kersch and Andrew Koppelman for having dogs in the fight on originalism. Kersch's "Anchor Originalism vs. Sail Originalism" suggests that originalism may be at sea. Koppelman brings in originalism as rhetoric. Gerard should be thanked for his posts. And Jack Balkin should be thanked for his new book "Living Originalism." There are many doubts with the appropriate method(s) for interpreting/construing the Constitution. We all have a dog in this fight. Maybe we are going through a new transformative era. In the words of the late Kurt Vonnegut, "And so it goes." Keep going, guys - and gals.

I'm not comfortable mixing/comparing economics with constitutional law/theory, but in the course of my Sunday morning reading of the NYTimes Business section, in particular Greg Mankiw's Economic View column and the rather extensive article on the upcoming recipients of the Nobel Prize in Economics, I saw some connections. While economics doesn't have a constitution to interpret, it deals with various theories, as do constitutional legal scholars. What if the Nobel Committee came up with a Nobel Prize in constitutional interpretation/construction? Imagine the competition.

With respect to Mankiw's column, I was struck by the last three paragraphs; in reading them, I thought of the situation with this and related posts at this Blog. I'm not going to type them out but trust that some commenters will read the column. [Note: I am not a fan of Mankiw but thought this column focusing on the walkout from his Ec 10 class was on target - and fair.]

It is clear that economic theories don't always work and thus change. Perhaps the same can be said for theories on interpreting/construing the Constitution.

Maybe I'll have more to say on this as I think of it further.

It is telling that the same legal scholars who are advocating deconstructionism in the interpretation of the Constitution do not similarly advocate this approach for contracts and wills. If we applied similar deconstructionism to contract law, the ability to contract would be effectively destroyed and the economy would effectively grind to a halt. This suggests that the application of deconstructionism to the Constitution is meant to effectively destroy constitutional rule of law.

In order to maintain the rule of law over the rule of men, words need to have fixed meanings.

Contracts and Wills may contain provisions for interpretation, construction, etc, whereas the Constitution does not. Even if they don't, evidence may be available in the event of a dispute more readily than with a Constitution over 200 years old. It should be kept in mind that much closer in time to the framing/ratification of the Constitution, the Bill of Rights and/or subsequent Amendments, there were decisions by SCOTUS interpreting/construing the Constitution, as amended, that would be challenged by just about every version of originalism starting with the 1980s Ed Meese "original intent" originalism. Why, some argue persuasively that Marbury v. Madison was not governed by originalism.

In any event, contracts, wills, statutes, etc, are distinct from a Constitution when it comes to interpretation/construction. Our yodeler's use of deconstructionism is excessive and misguided.

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Let me explain it to you kids.
The problem was never originalism it was fundamentalism.

Wise old man Jack Balkin is playing Erasmus, subverting his opponents' argument by undermining its claims to exactitude. In admitting defeat, his old argument wins: we're all originalists now, debating the living meaning of originalism. The reactionaries' argument is no longer reactionary. Tah-Dah!!!!

To paraphrase Nino: "The English language as I interpret it is a dead language."
He's an idiot. A reactionary peasant. The Constitution is living because language is living. That terrifies him. It's anarchy! No, it's just sloppy. Life is sloppy.

But that fight matters less than it used to, since the real questions have left the courts and gone back to electoral politics. The age of the juridical vanguard is over; that's why some who are addicted to the old process are now questioning judicial review.

They miss the point!!

We have a reactionary court, so street politics is back to center stage. Don't mourn, organize. It will all switch back in 50 years and strategies will change again.

Lesson is over

To the man who only has a hammer, everything he encounters begins to look like a nail.
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