Tuesday, August 11, 2015

The New Originalism and Living Constitutionalism: A Reconsideration

Stephen Griffin

In this and the next few posts, I hope to set out my approach to the theory of constitutional change and its implications for current debates on the new originalism and the viability of the idea of the “living Constitution.”  I am moved to do so by several considerations (including that I am planning a book on the subject!).  The other main consideration is that I feel I should respond to scholars who have themselves responded to my prior work, especially my article “Rebooting Originalism.”  This article was was critical of the new originalism, but was published before all of its features became fully apparent (at least to me).  So part of this is by way of catching up with the new originalism and updating my critique.  Lately it seems my name has come up a bit more than usual, especially in a recent interesting exchange between Lawrence Solum and Saul Cornell on the value of intellectual history and in Solum’s article on constitutional construction in a highly useful symposium in the Fordham Law Review.  Solum has been wonderful about mentioning my work, particularly in a Clough Center symposium at Boston College just a few months ago.  So time to return the favor, catch up on Solum’s crucially important and leading work, and set out my own distinctive position in a systematic way.  In proceeding with reference to Solum’s work, by the way, I am not trying to slight or ignore other significant work on original public meaning, including Jack’s own seminal Living Originalism.  But I feel Solum is pushing me in particular to clarify my position.  So in what follows, I will be arranging my argument around his recent work.

Another reason is that I want to justify further some just-published, fairly harsh remarks about original public meaning theory in my contribution “The Executive Power” to the Oxford Handbook of the U.S. Constitution.  With respect to pro-executive power scholarship since the 1990s, heavily reliant on original public meaning theory, I wrote that it “involves a deliberately selective approach to the use of historical evidence.  It is not a historicist theory and so does not involve the appropriate consideration of historical context.  The highly questionable consequence of original public meaning methodology is to create an alternate version of eighteenth-century history seemingly designed to bypass the most insightful and learned scholarship on the Founding Period.” (citing in particular the work of Gordon Wood and Jack Rakove)  The distinction I draw here between interpretive works that are “historicist” as opposed to “originalist” (using original public meaning theory) is certainly not obvious.  I want to say more about this.  Relatedly, it has become more evident to me that many scholars don’t see the lay of the land the way I do, specifically with respect to the importance of theories of informal constitutional change to other issues in constitutional theory, including issues of interpretation.

A rough road map to these posts follows.

I will begin below by mildly disagreeing with the standard picture Solum, Barnett and other scholars present of the way the critique of originalism evolved in the 1980s and after.  In the posts that follow, I will present my objections to the leading current versions of both original public meaning theory and living constitutionalism.  I’ll illustrate my objections to the former through an examination of pro-executive power scholarship in the 1990s and after.  I will then broaden the contrast between both originalism and current versions of living constitutionalism versus the conception I defend by detailing what intellectual history, properly understood, can contribute to our understanding of American constitutionalism.  Finally, lest the argument overload on the side of critique, I’ll advance a positive argument that the best way to understand the living Constitution is through theories of informal constitutional change.  The positive side of my presentation also involves a close look at the “difficulty of amendment” argument, an absolutely key point of contention between contemporary theorists of originalism and their critics.

For now, where to start?  Solum often begins by presenting a short history of the development of originalism and living constitutionalism.  Because I followed the debates closely from the early 1980s onward, I want to separate myself somewhat from his meant-to-be-standard account.  Although I do agree with some elements of his account, others I don’t.  In particular, both Solum and Randy Barnett tend to highlight the importance of Paul Brest’s early article critiquing “originalism,” which, as they emphasize, was then a new term in constitutional theory.  The idea is that Brest critiqued only early versions of originalism which relied on individual or collective “intentions” as opposed to an objective search for original public meaning.  There were some problems with Brest’s article that I will highlight later.  For instance, if you look closely, it becomes apparent Brest was considering only the difficulties of interpreting the abstract clauses of the Constitution, not the clauses that have retained their meaning since the eighteenth century.  But the point I really want to emphasize here is that subsequent scholars often took Brest’s anti-intention argument to mean that it was too difficult to determine constitutional meaning through historical inquiry generally.  If this was indeed Brest’s point, he swept too broadly and subsequently scholarship certainly did.  This kind of critique of originalism meant not only that approaches narrowly based on “intentions only” were infirm, but any attempt to use relevant historical scholarship to illuminate the founding period.

In other words, Brest’s argument wasn’t precise enough to distinguish between approaches that assumed the existence of an elusive “collective” intention and those that simply made reasonable inferences from reliable historical evidence.  No one is really against the latter.  So for my part, I never thought Brest’s argument was decisive against originalism.  The logical consequence of his argument was to totally rule out any reliance at all on historical evidence.  Some scholars actually made this argument by way of following up on Brest – but again, this never struck me as plausible and it was a false trail that no one today is interested in.  Now, if you didn’t think Brest’s argument was decisive, you were unlikely (as I was) to be overly impressed with Justice Scalia’s turn to original meaning.  Why?  Because it was as reliant on historical evidence as the “intentional” approach.  Of course it was.  The essence of contemporary originalism is the privileging of evidence from the past in the determination of constitutional meaning over evidence from the present.  As I and other scholars have argued, this means originalism has to come to grips with the idea that there are better and worse ways to do history.  So from my point of view, Scalia’s turn to original public meaning was one of the most under motivated moves in recent constitutional theory.  And here I obviously agree with those scholars who don’t see much difference between the approaches in practical terms.  On the other hand – and this point is crucial – Scalia’s move did have very specific implications for arguments about executive power – implications that pointed, as Scalia no doubt wished, in a pro-executive power direction.  As I will argue later, this is because original public meaning approaches tend to downgrade evidence from the Federal Convention, the source of some of the best evidence that the Framers wanted to, in various ways, check the powerful executive they created almost without intending to.  But that’s for later posts.

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