Wednesday, August 19, 2020

AMA: Evan Bernick Asks About Constitutional Dealbreakers


Continuing this ongoing series.

EB: Suppose we somehow discovered that Brown and Loving and Reynolds and Roe were all incompatible with original meaning. Would that be enough for you to abandon originalism? If not, what would be? Any dealbreakers?

JB: I assume that you are asking me about my own conception of original meaning: a thin theory of original meaning that is supplemented by constitutional construction. If these cases turn out to be incompatible with a thin theory of original meaning, then the original meaning prevails. That's the point of asserting that original meaning is binding on interpreters. If there is a deal breaker, then the Constitution is inadequate and needs to be scrapped or amended. In fact, my friend Sandy Levinson has argued that there are many parts of our Constitution that should be regarded as dealbreakers.  Our recent book, Democracy and Dysfunction, debates this question.

Consider what it would require for Brown, Loving, Reynolds, and Roe to be incompatible with the thin theory of original meaning. It would mean that there isn't a plausible construction of the Constitution's text that produces the doctrines in these cases. For example, it would mean that there is no plausible construction of "equal protection of the laws" that would lead to the result in Brown. Or it would require that the Constitution explicitly states that no rights of this kind exist.

For many years everyone assumed that there was absolutely no way that Roe v. Wade was consistent with the original meaning of the Fourteenth Amendment. But the whole point of my 2006 article, Abortion and Original Meaning, was to show that this assumption was false.

If women have rights of equal citizenship, which they do under the Fourteenth Amendment's various clauses, they also have  rights to reproductive freedom, because the first set of rights is not really complete without the second. My argument was then, and remains now, that unless women have the right to choose the number and timing of their children, they will always be at a disadvantage vis a vis men in multiple areas of political, economic, and social life. And this disadvantage means that they will not be truly treated as equal citizens.

Laws that restrict women's reproductive rights are class legislation in violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses. Far from being inconsistent with original meaning, a guarantee of reproductive freedom is the best reading of the Fourteenth Amendment.

To be sure, my view is that the result in Reynolds is best understood under the Guarantee Clause and not under the Equal Protection Clause (L.O. pp. 243-44).  So I would replace the "one person one vote formula" with a requirement of structural fairness in the processes of representation. But that is not a deal breaker. That is a better account of what the Constitution actually requires.

EB: In 1996 you wrote (in Agreements with Hell and Other Objects of Our Faith) that “[o]ur theories of the Constitution are makeshift attempts, reflecting the concerns of our era but dressed up as timeless claims about interpretation.” Do you still think that that’s true? If so, might originalism have an expiration date? If not, why not?

JB: Yes, I still think that is true. Certainly the particular theories that we argue about today and some of the claims that we make about the Constitution today will look quite different to people in the future. Some of these theories and claims will look implausible, some beside the point, and a few even downright silly.

But it's misleading to talk about "originalism" as if it's a single thing that could have an expiration date. There are lots of different flavors of originalism, and lots of specific claims that have been made in the name of originalism.

Moreover, we should distinguish today's versions of originalism-- and the debates that currently roil the legal academy--from the very general idea that that interpreters should look to the original meaning of the text, or to the purposes of those who framed or adopted the text. Appeals to original meaning, intention, and understanding are standard forms of constitutional argument that people have employed for a very long time and will probably employ for a long time to come in American constitutional culture. People of all political and ideological stripes do this and will continue to do this, as we saw most recently in the impeachment of Donald Trump. Most theories of constitutional law-- including living constitutionalist theories-- recognize the persuasiveness of arguments from original purposes and meanings. They simply recognize the persuasiveness of other kinds of arguments as well. (For that matter, so do most originalist theories.)

I expect that many specific versions of originalism and many specific originalist arguments will seem implausible many years later, but that is also true of many particular versions of nonoriginalism and many specific nonoriginalist arguments.

I hope that the basic argument in Living Originalism still seems plausible to readers fifty years from now, but I have little control over that. We write constitutional theory in our own time, and hope that it is useful to people later on.

EB: Should public officials ever deliberately violate the Constitution’s original meaning? If not, why not? If so, when/how?

JB: Again, we are assuming a thin theory of original public meaning.

Officials should not knowingly and deliberately violate the Constitution's original meaning in the thin sense. In most cases, that would involve violating the Constitution's clear command. In Sandy Levinson's and my terminology, openly defying the Constitution would precipitate a Type One constitutional crisis. It would signal that the Constitution had failed. Disobeying the Constitution under these circumstances would only be justified if political revolution were justified. And it would be justified outside of the law, not within the law.

Officials openly and deliberately violating the Constitution, however, is different from a situation in which officials have a good faith dispute about the correct interpretation of the Constitution and believe that they are actually following it. Officials often disagree about the meaning of the Constitution, and those disputes are settled in the courts or in politics.

As noted above, violating the clear command of the Constitution is usually also a violation of the original public meaning (in the thin sense). But the reverse is not always true. Under the thin theory, the original meaning may be ambiguous or vague and political officials may be uncertain how to resolve ambiguities or apply vague terms. There may be good faith disagreements in these cases, and resolving them in the courts or through political give and take between the branches does not constitute a constitutional crisis.

EB: Do oaths add anything to anyone's moral obligations to follow the Constitution? Why or why not?

JB: An oath is a solemn promise to behave in a certain way. It adds the moral obligation of promising to whatever existing obligations one already has. It is important for government officials to obey the Constitution, because they are clothed with state power. The Constitution limits and channels their power. Therefore it is a good idea to commit them in advance to promise to support it.

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