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Sometimes parody reveals more truth than even the parodist intended. Last week I tweeted what was meant as an offhand joke about originalism but which was taken seriously by some. But those who did take it seriously sparked a debate that ended up being fruitful in a way I had not remotely foreseen. Eventually I’d like to say more about that, but first I want to state more explicitly the point I was trying to convey.
The joke was this: I wrote, “I have a new theory of constitutional law. I call it ‘living constitutionalism.’ It claims that the Const. has been interpreted by the Court in different ways at different times. It is thus a ‘living’ doc. Living Constitutionalism is our law and judges take an oath to support it.” I then spelled out the syllogistic argument that proved we have a living constitution:
P1: Texts whose interpretations change over time are “living.”
P2: The Constitution is a text whose interpretation has changed over time.
C: Therefore, the Constitution is a living text.
The joke probably only made sense to those who have been following recent debates about constitutional originalism. In case you have not been following them so closely, here’s a quick synopsis of the dialectic, which conveys something of its frustratingly shape-shifting quality:
Critic: Huh? No, it’s not — it’s rejected by a majority of the Supreme Court and most federal judges!
Originalist: No, I don’t mean Bork’s or Scalia’s kind of originalism. I just mean that we think our Constitution began at the founding and there have been no revolutions since. Like in the way that Anthony Kennedy is an originalist.
Originalist: No worries, we’ve got that. See Hart, etc. Also, the judicial oath proves that originalism is true.
Critic: Wait, what?
Originalist: Well, judges swear to uphold “the constitution,” right? And that’s the same Constitution President Washington swore to uphold, no? So when judges swear to support and defend the Constitution, that is the same constitution as “this constitution” that Article VI makes the supreme law of the land. Therefore, originalism is true.
Critic: So judges who aren’t originalists are breaching their oaths and are thus impeachable?! That’s crazy! And question-begging and circular. At the very least, it depends on what you mean by “same.”
Originalist: No, not impeachable, just mistaken is all. To understand, you really oughta bone up on your philosophy of language, from Frege to David Chalmers’ latest work. Anyway, all I’m saying is that IF originalism is our law, then judges have a duty to uphold it.
Critic: Oh, okay. But then if living constitutionalism is our law, then judges have a duty to uphold a living constitution. But that’s the whole issue in dispute. So, to repeat, what’s the point of all this again?
Now, of course, this is an unfair caricature. But it does convey, I think, what is so maddening about the arguments on offer. They are simple in form, but they are either banal or deeply controversial, depending on how you interpret their premises. If the premises are banal, so is the conclusion; and if the premises are deeply controversial, so is the conclusion. Life (and logic) is like that.
But the Critic’s question above need not be rhetorical: given that originalism has become so capacious that endorsing it no longer requires rejecting any particular Supreme Court case or doctrine—one so capacious that the owner of this blog can propound a version of it—given all that, what is the point of these often quite abstract, philosophical debates about originalism?
To some the answer is obvious: originalism is just a label, a brand for conservative law students, lawyers, law professors and judges. Its function is to convey the message that one is part of the Group and devoted to the Cause. On this view, its flexibility is not a bug but a feature, for it allows young conservatives to be members of the Federalist Society in good standing and yet do so without committing themselves to the view that, say, the Constitution would allow states to ban women from practicing law.
That rather cynical explanation may be right, but I prefer a more charitable interpretation. I think originalists genuinely believe that it matters that even liberal judges and scholars pay lip service to the framers and strive, whenever possible, to render their constitutional views consistent with original understandings. See, e.g., virtually every liberal law professor’s constitutional argument for impeaching Trump. The originalists think it matters that there is an “official story” of our constitutional order that traces back to the founding and that judges promise to take that story seriously when they decide cases.
If that is right, then my question is not about the propositions these facts are marshalled to establish, but rather the perceived stakes involved in doing so. Why does it matter that these features are part of our constitutional practice? The answer cannot simply be that they reveal originalism to be true, because there are lots of truths that don’t generate articles, conferences, blog posts and op-eds devoted to establishing them. Is it because the ideal of the rule of law requires a hierarchal structure of authoritative rules, without which there would be chaos? Is it because the founders were particularly wise or virtuous and so deserving of deference, even if only superficially? Is it because a constitutional order requires, for its survival, some consensus, however thin, about such origin stories? Something else entirely?
I think what is frustrating to many observers of, and participants in, recent debates in constitutional theory is the sense that the answers to these questions (whatever they may be) are doing the real work in the arguments for originalism. Yet they are rarely articulated. They underlie the choice of premises but make no appearance in the syllogisms. Maybe if they were brought out and acknowledged, the debate could be more meaningfully advanced.
Of course, such questions cut both ways. It is equally fair to ask about the stakes for those of us who are concerned to refute an originalism so open-ended that it could be used to justify the constitutional protection of gay marriage? What convictions or commitments are insufficiently recognized by – or even threatened by – such an originalism?
I did not intend my offhand joke to raise these questions, but the ensuing debate did, and in ways I did not expect.
To be continued.
Charles Barzun is the Horace W. Goldsmith Research Professor of Law at the University of Virginia. You can reach him by e-mail at cbarzun at law.virginia.edu