Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The “oath argument” for originalism has been generating a lot of buzz online recently and has already been subjected to a lot of criticism. But the most obvious defect in the argument has not been adequately identified. The basic problem is that the whole argument hinges on an implausible assertion about what maintaining identity over time requires—in Constitutions or anything else.
The oath argument for originalism is straightforward. Here’s the argument, as outlined by Chris Green on the originalism blog:
(1) Officers today take oaths to support “this Constitution,” and that oath is morally binding unless overriding considerations exist.
(2) Such overriding considerations do not exist.
(3) The objective content of an oath, as an observer would understand it, is binding, rather than an oath-taker's subjective understanding.
(4) Our current oath-taking constitutional culture uses the phrase “this Constitution” to refer to something that is the same for all oath-takers and the same as it was at the time of the Founding; people today think George Washington swore the same oath to support the same Constitution as do current office-holders, and that America has the oldest currently-operational written Constitution.
(5) A constitution with different powers to change is a different constitution.
(6) Our Constitution has the same powers to change that it did at the Founding.
(7) At the Founding, the text of the Constitution imposed its requirements by expressing meaning on the basis of the legal interpretive conventions that existed at the time, applied to the original context.
(8) The meaning expressed by the text of the Constitution, on the basis of the legal interpretive conventions that existed at the time, applied to the original context, binds office-holders today.
As others have noted, the key move is premise (4), which says that according to our constitutional culture, the Constitution that judges swear to support is the “same” constitution as the one at the founding. Changes to it can only change through the procedures laid out in Article V. Therefore, any changes not made through those procedures are not part of the Constitution and thus not what judges swear to support.
The obvious question is, what does it mean to be the “same” constitution? For if the constitution’s identity could survive despite dramatic changes in meaning over time (even when not contemplated in the constitution itself), then their argument, though still valid, would fail to deliver the goods for originalism. That’s because it would be perfectly consistent with “living constitutionalism.”
In their paper, Evan Bernick and Chris Green take up this question directly. Following Aristotle, they distinguish between essential and accidental properties of a thing (p. 34). An entity can endure if its accidental properties change, but not if its essential properties do so. To use their example, you can replace the blinds on a new house and it remains the same, but if you raze it and build a new one with the same wood, it probably is not the same house.
They then argue that for a constitution, the method by which that constitution may be changed is an essential, not merely accidental, property (p. 36). Therefore, a constitution that at T1 could not evolve cannot become a constitution that does evolve at T2. It would be a different kind of thing at that point (a changing thing, not a not-changing thing). Since we treat the Constitution as the same as the one at the founding, changes in meaning that do not stem from Article V procedures are not part of the Constitution that forms the object of the oath judges take.
The potential implications of this argument are controversial, to put it mildly.
Yet for all the talk that the Oath argument has generated, its foundation is amazingly flimsy. Bernick and Green observe that an entity’s capacity to survive changes over time is itself an essential property. They then infer from this plausible premise the far more speculative conclusion “A change in the sorts of changes that an entity can survive is, by its nature, an essential change. To obtain a new ability to change, lacked before, is to become a new entity.” (p. 36).
Putting aside the fact that the first sentence quoted seems internally contradictory, why should it be the case that developing a new ability to change destroys identity? It used to be that people could not survive a badly damaged heart; now, if you are lucky, you can receive a heart transplant. Does that mean you have a new identity after the transplant?
To see the problem more clearly, consider the famous example of Theseus’s ship. Over the length of Theseus’s journey each plank is replaced, so that by the end of the voyage every plank is different. Is it the “same” ship? Well, formally and structurally it’s the same, but the materials are different. So, presumably it depends on whether material changes are “essential” or “accidental” changes.
Bernick and Green mention this example but do not grapple with its implications. The point is not just that it may be hard to determine which sorts of changes are essential and which are accidental. The point is that you cannot answer that question by looking to historical facts about the ship on the day it set sail. Theseus could not have declared in advance what would preserve the identity of his ship and what would not, because that question is not an historical one but a philosophical one. (Unless, of course, a legal document – say an instrument creating a lien on the ship – makes particular historical facts relevant, but then we’d have to interpret that instrument).
The same is true of the Constitution. There is no fact about what anyone did or wrote in 1787 that could tell us whether the subsequent changes that the Constitution has undergone without amendment—e.g., from one that protected the right to contract to one that protects right to contraception—preserve its identity or not. That is a question for us to decide.
So if the Oathers are right (and I think they probably are) that most of us today do think that our Constitution is the same as the one at the founding, they are asking the wrong question. The question is not, what Constitution did Washington swear to uphold (so that we may revise our practice to better conform to it). Rather, the question is, given the considerable changes that have occurred since the founders’ time and ours, what is at stake — legally, philosophically, ideologically — in our insisting that our Constitution was also theirs?
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