Saturday, December 03, 2011

Anchor Originalism vs. Sail Originalism: An APD Take

Ken Kersch

What I do these days leads me to approach the originalism question from what, to many readers of Balkinization, will be an oblique angle.

The quest/competition for an airtight academic theory about the best (most legitimate, only legitimate…) way for judges to interpret the Constitution is a pretty recent phenomenon – mostly, Reagan administration forward. It has been interesting to see the movement amongst many on the liberal-left from an audacious non-interpretivism and even deconstructionism towards (forms of) originalism – indeed, as someone who was introduced to constitutional theory in law school by Michael Perry, I saw this first-hand early on. The wonder, it seems to me, is that the non-interpretivists (and deconstructionists) ever imagined that their views could be openly adopted without an intense -- and likely successful -- political backlash from their conservative opponents. Another of the wonders (weeeeee!), I guess, of the post-1960s hangover known as the 1970s.

As for what is happening now, Gerard Magliocca, in a recent post here, throws up his hands, and argues that, with the arrival of Jack Balkin’s important new book – which joins the issue as squarely as has been done to date -- really, all we’ve done is arrive at a new axis for debate between “weak originalism” and “strong originalism” (or, put otherwise, between “living originalism” and “expected application originalism,” respectively). If we -- liberals and conservatives alike -- are all originalists now, then who cares about originalism?

My inclination is to look at the matter less normatively, and more empirically. I believe in constitutional development. I believe that, as a matter of empirical fact, the meanings attributed to the Constitution change (informally) over time. Changes are initiated, tolerated, and welcomed by liberals and conservatives alike, albeit in different areas, and at different times. This is inevitable, as matter of how history works, and how human beings apprehend and make meaning.

Since I believe that change happens, and I’m not advancing a normative view (unless, perhaps, incidentally), I would distinguish instead Anchor Originalism from Sail Originalism, with each having different core preoccupations. I’m with Jack in believing (as I take him to believe) that Anchor Originalism in any rigorous, pinched, across-the-board form is chimerical. But that is not to say that it can’t be influential in many ways, in many areas of constitutional law. But I would also agree with Jack (though I’m not sure he’d assent to this characterization) that, as a matter of politics, in its good/real/deep sense, Anchor Originalism is essential to (American) constitutionalism.

I thus think the real debate should be between various versions of “living originalism.” This is what contemporary “Yale School” constitutional thought does. The most interesting question for me, as one interested in models of long-term structural constitutional change, is which version of living originalism – one that emphasizes punctuated equilibria and relatively large scale regime changes (see Bruce Ackerman and Akhil Amar) or one that emphasizes change in particular areas through social/intellectual/political movements, which may be ongoing, and incremental (see Jack Balkin, Reva Seigel, Robert Post, e.g.) best captures the nature of constitutional change (or how the two models might be integrated to best capture the empirical reality of constitutional change)(see, e.g., Keith Whittington). Since change happens, I would subsume the conservative version of Anchor Originalism within the Yale School model as -- in its actual, substantive content -- part of a social/intellectual/political movement.

I think I’ve stated this more clearly here than I have elsewhere, but that is the underlying assumption, at least, of my recent article “Ecumenicalism Through Constitutionalism: The Discursive Development of Constitutional Conservatism in National Review, 1955-1980,” Studies in American Political Development 25 (Spring 2011): 86-116 (and, doubtless, everything else I’ve been writing lately on constitutional conservatism).

In my graduate seminars in American Constitutional Development, this is how I approach the subject: we discuss the nature and causes of constitutional change – which is inevitable – as well as the ways in which longstanding, deeply-rooted institutions structure/channel/cabin/block change (sometimes through deliberate design, and sometimes via paths that are unintentional) – which is also inevitable.

I’ll leave it to others to give advice to judges. But, speaking as a student of American political development (APD), I’m afraid that is simply how it is.

All sail and no anchor won’t do (not just normatively, but as simple fact), but neither will all anchor and no sail. Such is (constitutional) life.

Originalism is dead; long live originalism!

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