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Bruce Ackerman bruce.ackerman at yale.edu
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Sanford Levinson slevinson at law.utexas.edu
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Originalism as a Topic versus Originalism as a Theory
I have said on a number of occasions that originalism as a theory of interpretation is not widely practiced outside the United States, and that even within the United States, state judges tend not to be originalists. Nevertheless, over the years, people have pointed out, quite correctly, that this judge or that judge in another country, say Canada, or Malaysia, has made arguments that look and sound pretty originalist. There are also a very sizeable number of originalist arguments in state constitutional decisions--these happen, for example, anytime a state court interprets a recent referendum or state constitutional amendment.
The article argues that when lawyers make constitutional arguments, they use stock forms and strategies of argument, which classical rhetoric calls topoi or topics. Most people in constitutional theory know about Philip Bobbitt's famous catalog of topics, which he called "modalities."
Topics give lawyers ways of analyzing legal problems and arguing about how to resolve them (hence the title, "Arguing about the Constitution"). Standard topics rest on commonplaces about what makes a constitutional argument valid and persuasive. These commonplaces are incompletely theorized-- that is, people may agree with the basic premise (for example, that arguments from purpose are valid), but they may not have thought very much about why the premise itself is valid and once they start arguing about it, they might well have different views.
We can think of originalism in two different ways. The first is as a general theory of constitutional interpretation. This is the view that the original meaning, original intention, or original understanding of the Constitution is fixed at the time of adoption, and that we should always interpret consistently with it.
A second way to think of originalism is as a set of rhetorical topics, that is, a series of standard arguments that lawyers invoke whenever they think it will help them analyze a problem or persuade an audience. In American legal culture, these topics include arguments from text, purpose, structure, tradition, ethos, and so on. For each of these topics, there are special cases--or subtopics--that focus on adoption history. These topics include arguments from the original meaning of the text, from the original understanding of the adopters, from the original intention of the framers, from the ethos of the founders, from the values of the founders, from the political tradition of the founders, and so on.
The key point is that you don't have to be committed to originalism as a general theory of interpretation to use any of these originalist-style topics, anymore than you have to be a textualist to occasionally make arguments from the text, or a structuralist to occasionally make arguments about structure.
That's how topics work-- they are a grab bag of generally accepted kinds of arguments that lawyers can pull out, as the need arises, to analyze a situation and persuade their audience. Lawyers can make an argument from original understanding in one case and an "non-originalist" argument from consequences in the next; indeed, they can make both arguments in the very same case.
Therefore, we should expect that lawyers and judges, both in the United States and in other countries, will use originalist-style topics on occasion. They will do so whenever they think that it makes their arguments more persuasive, just as they will avoid using originalist-style topics whenever they think this would undermine or embarrass their arguments.
That is why it should not surprise us to see, for example, Canadian judges making arguments from original meaning, original intentions, or original expectations every now and then. That is because Canadian legal culture, like ours, is a common law culture, and in that culture, arguments from text, purpose, and tradition are valid topics for lawyers to employ in analyzing problems and persuading audiences. The same is true in the legal culture of many other countries, even if they are not common law jurisdictions.
This fact does not commit either lawyers or judges in these countries to originalism as a general theory of interpretation. It does not commit them to the idea that, in general, one must always (or usually or normally) make arguments from original meaning, intention, or understanding to decide contested cases. Nor, more importantly, does it commit them to the proposition that all decisions must be consistent with original meaning, intention, or understanding.
The distinction between originalism as topic and originalism as theory is obvious once one states it clearly, because otherwise one could not explain why William Brennan, John Paul Stevens, and a host of other nonoriginalist judges had no qualms about using originalist topics and making originalist arguments whenever it suited them.
When there is very little precedent on a topic, for example in cases involving presidential impeachment, or, until recently, in cases involving the Second Amendment, lawyers will naturally reach for originalist topics, because those topics are likely to offer the most useful resources for making arguments. And when doctrine itself calls for an inquiry into historic practice, or applies a historical test--as the Supreme Court has decided in Seventh Amendment cases, and many lower courts have decided in Second Amendment cases--lawyers will make arguments about founding-era practice. They will do so not because they are committed to originalism as a general theory but because the relevant doctrinal test tells them to.
And this is the whole point of the distinction between rhetorical topics and constitutional theories. Using originalist topics to make originalist arguments doesn't make you an originalist-- it doesn't mean that you generally subscribe to a theory of originalist interpretation-- any more than making arguments that don't concern original meaning-- for example, arguments about precedent or consequences--makes you a non-originalist. You made those arguments in a given case because you thought they would be most persuasive to your audience, but you will happily change your approach in the next case.
There are very few legal cultures in which appeals to the history of adoption, to the original meaning of the text, to the purposes of those who founded the country (or the current regime), or to the cultural memory of events that produced the current constitution, are forbidden arguments. In most legal cultures, these are acceptable topics for legal argument. And that means that, in the right case, lawyers and judges will make these kinds of arguments, if in doing so they believe they can make their positions stronger or more persuasive. That is just what lawyers do. But it doesn't make them originalists from the standpoint of constitutional theory, nor does it mean that originalism as a theory has gained a new set of converts.
Conversely, if one is an originalist as a matter of constitutional theory, like, say Justices Thomas, Gorsuch, or Scalia, there is absolutely no problem in making arguments that have nothing to do with originalism in the ordinary run of constitutional cases, as long as the arguments are otherwise consistent with the general theory. If one is a New Originalist, for example, one makes many different kinds of arguments in the zone of constitutional construction. One even makes historical arguments there.
An originalist judge in this sense is not a judge who makes originalist arguments-- for that would have included Earl Warren and William Brennan-- but rather a judge who is committed to some form of originalism as a general theory of interpretation: a theory of interpretation that the judge is committed to apply in case after case, regardless of the consequences. Such an originalist judge should not be criticized for making arguments that do not sound in original meaning, intention or understanding. The judge can be criticized, however, for making these arguments when they conflict with their very own theory of originalism-- that is, when they argue for a position that has no basis in or conflicts with the original meaning, intention, or understanding of the Constitution.
Recently, for example, Mike Ramsey argued that, although it appears likely that the Supreme Court's two originalist Justices will vote to overturn Abood in the recently argued Janus case, this result "appears very problematic from an originalist perspective." That is because there is little evidence that the original meaning of the First Amendment prevented something like agency fees. Randy Barnett has argued that an originalist judge like Justice Scalia should not have taken certain positions in commerce clause cases, and so on. The concern here is not that these Justices have failed (or will fail) to use originalist topics in their arguments; rather the objection is that the Justices are reaching results that are not consistent with their own versions of originalist theory.
The distinction between topics and theory also helps us get a better handle on debates over the future of originalism in constitutional practice. The number of judges and Justices who are committed to originalism as a theory of interpretation may wax or wane depending on the vagaries of politics and judicial appointments. But the topics of originalist argument are likely to remain in American constitutional discourse no matter who appoints the judges.
That might seem surprising. One might think that if Republicans appoint more originalist judges, we would be certain to see more originalist arguments in briefs and opinions. That may well be true. But one of the most interesting features of Frank Cross's study of originalism in the twentieth century is that originalist topics in judicial opinions begin to increase during the Warren Court years. The reason for this is simple. Appeals to origins are a means of revolutionary change, and originalist arguments help judges get around existing bodies of precedent. The Warren Court Justices used originalist topics and made originalist arguments because they wanted to sweep away existing decisions and replace them with new ideas that they claimed were already in the American legal tradition. As long as originalism is a valuable method for overcoming precedent, we should expect originalist arguments to stick around, no matter how many originalist theorists grace the federal courts.