an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Over at the Liberty Law Blog, there is a very interesting symposium responding to Steve Smith's essay on Meanings or Decisions? -- Getting Originalism Back on Track. Steve is concerned that the turn to original meaning originalism was mistaken, in part because it made possible my fusion of living constitutionalism and originalism in Living Originalism. If people like me can join the original meaning club, he suggests, maybe it isn't worth being a member anymore. He wants to start over with a new term, like "original decisions originalism."
In one sense Steve is right, of course: once originalism moved to a focus on original public meaning and away from a focus on original intentions or original understanding, the distinction between original meaning and original expected applications was inevitable. So too was the intellectual synthesis that I produced in Living Originalism, showing that the best versions of originalism and living constitutionalism were just two sides of the same coin.
In fact, I was by no means the first to spot the likely consequences for original meaning originalism. Mark Greenberg and Harry Litman made this argument in 1998; a year later Randy Barnett made a similar move, as did Kim Roosevelt in 2006; and of course, Ronald Dworkin's notion of semantic originalism made the point even earlier still. The major problem for Steve is that going back to something like "original decisions originalism" is just going to dredge up the same problems as earlier versions of originalism that have since been abandoned.
I believe that there is no going back at this point. Originalism and living constitutionalism are now one nation, indivisible (with liberty and justice for all, we hope!)--and originalism, like humanity itself, is condemned to be free.
Mike argues that, unlike John and himself, I believe that values should inform the choice of which version of originalist constitutional theory one chooses, whereas good originalists should not engage in such value choices. As he explains "Rather than adopt an interpretive approach based on one’s values,
however, an originalist ought to discern the original meaning in the
most accurate way possible. That may involve judgment calls, but it
should not be based on one’s values."
“Meaning” is a
capacious concept, and indeed, it has many different meanings, including
semantic content, purposes, intentions, practical entailments, and cultural
associations.Conceived most broadly, “meaning”
includes a vast array of cultural associations, traditions, conventions, and
background assumptions.Any version of “original
meaning” in legal interpretation must inevitably carve out a subset of these
cultural meanings and treat this portion as remaining in legal force over
time.Therefore, any version of “original
meaning” will necessarily be anachronistic, because it will insert some portion
of the vast array of past cultural meanings into a contemporary setting without
bringing the other parts along with it.
Inevitably, then, we
face a choice in the present about what aspects of cultural meaning should
constitute “original meaning” for purposes of constitutional
interpretation.There is no natural and
value-free way to make this selection.It cannot be settled by the meaning of “meaning,” much less the meaning
of “original.”It is a choice that is
informed by the purposes of a constitution and the promotion of the kind of
legitimacy (democratic, social, procedural, or moral) we want our government to
Mike suggests, however, that his and John's theory of original methods originalism does not rest on value choices, but only on a desire for accuracy. In fact, Mike, John and I all employ values to choose our particular versions of originalism. My thin theory of original meaning is premised on the importance of preserving present-day democratic legitimacy consistent with the rule of law (because I argue that a thicker conception will cause intractable problems for legitimacy), while Mike and John's model is premised on the importance of achieving good consequences. That is, their account of original methods originalism is not driven by the fact that this is simply what an accurate interpretation of a text is. Rather this choice is driven by their deeper theory of why originalism is justified in the first place. They argue that combing adherence to constitutional rules created by a supermajority with original interpretive methods achieves the best consequences for a polity, and that this -- not democracy or the rule of law -- is the basis on which originalism can be justified. But both of these are value choices: I want to make sure that the Constitution maintains democratic legitimacy over time, they want to ensure that the Constitution produces good consequences.
Moreover, Mike and John have an elaborate theory of stare decisis that lets them accept certain non-originalist precedents (1) where they reflect a very strong contemporary consensus or (2) where they compensate for previous failings in the process that produced the original Constitution (although in their view the Reconstruction Amendments and the Nineteenth Amendment have mostly taken care of this problem). The decision to accept these qualifications to their theory of fidelity to original meaning is also tied to their value choices. That does not mean that their choice of exceptions is wrong, only that it is also grounded in important values that underlie their general interpretive approach.
When you dig deeper into the weeds of our theories, none of our versions of originalism is truly neutral or value-free. They are premised on important values that originalism should serve, just different values. I think that it's very important to be upfront about the normative goals implicit in any theory of interpretation, much less a theory of originalism.
Stephen Sachs's essay, Saving Originalism's Soul, and Will Baude's essay, Originalism and the Positive Turn, represent the newest moves in originalist theory-- the idea that originalism is grounded in American conceptions of law and legal practice. Steve has argued in his forthcoming essay Originalism as a Theory of Legal Change, and Will is currently arguing that the best justification for originalism is that fidelity to original meaning is part of American legal practice. The original meaning of a duly enacted constitutional provision remains the law until it is legitimately changed according to the legal rules of the system.
This positive turn, as Will calls it, has much in common with the arguments I made in Chapter 3 of Living Originalism for why even non-originalists should accept some form of original meaning originalism. There I pointed out that "in the American system laws continue in force over time until they are repealed or amended" and therefore adherence to original meaning is justified because the text was created in an authoritative manner and continues as law until it is lawfully changed: "The initial authority of the text comes from the fact that it was created through successive acts of popular sovereignty, and the text continues in force today because it is law." (p. 55).
This positive theory of originalism that Steve Sachs and Will Baude are working on has three advantages.
First, it is potentially consistent with many different forms of originalism, including the thin theory of original meaning. Whether it will remain so will depend on how the theory develops. It may turn out that the positive theory is inconsistent with the thin theory of original meaning, but that is an empirical and historical question. My own assessment of American legal practice is that the thin theory of original meaning is the most consistent with the actual development of American legal practices and American constitutional law. Under this account, we often look to the intentions, purposes, and understandings of the framers and adopters as legal resources for constitutional interpretation (i.e., constitutional construction) but we do not always have to accept them as legal commands. In contrast, we continue to accept the constitutional text as law.
Second, because the positive theory is grounded in distinctly American legal practice, the positive theory is also consistent with the potentially embarrassing fact-- embarrassing to many originalists, that is-- that very few countries outside the United States self-consciously employ originalism in their approaches to constitutional interpretation. If originalism were a general theory of how to interpret a constitution in a democracy, this would be difficult to explain.
Third-- and on the other hand--because the positive theory grounds originalism in rule of law ideas rather than fidelity to the wisdom of honored framers and founders, it is possible that some countries might actually have practices consistent with a positive theory of originalism, even if they do not call their approach originalist.
It will be very interesting to see how this new contender in originalist theory develops!