For the Balkinization 20th Anniversary Symposium
Richard Fallon
Although I have never before written anything for inclusion
in a blog, I am pleased by this opportunity to celebrate Balkinization
for its remarkable contributions over the past twenty years. As per the invitation of Jack Balkin, I write
to offer a few observations about the nature of U.S. constitutional theory, the
current state of the discipline, and likely future developments, especially
involving originalism.
The Nature of Constitutional Theory
Despite my having written about constitutional theory for nearly forty years, the nature of the field has always struck me as parochial. Although there are distinguished exceptions, most U.S. constitutional theorists do not concern themselves much with constitutionalism in a conceptual, global, or comparative sense, or with the optimal contents of a well-designed constitution. Instead, we tend to focus almost exclusively on how the Justices of the Supreme Court ought to interpret, implement, or apply the Constitution of the United States.
Within this U.S.-focused framework, constitutional
theory is tightly linked to practice – a term meant to capture overlapping assumptions
of the two leading Anglo-American jurisprudential thinkers of the past century,
H.L.A. Hart and Ronald Dworkin. Both understood
law, as a conceptual matter, to be rooted in the behaviors and attitudes of
relevant constituencies in accepting identifiable texts and sources as somehow
authoritative or (for Dworkin) at least presumptively authoritative. A mature legal system, Hart taught, also
includes rules of adjudication and change.
And these rules depend, either directly or indirectly, on social facts
involving their acceptance, which in the U.S. would centrally include acceptance
by the Supreme Court. Dworkin, who
accorded interpretation by judges a central place in his theory of law, thought
that a theory must “fit” official practice at least tolerably well.
On the jurisprudential models suggested by Hart and
Dworkin, theories of constitutional interpretation can have either or both of two
overlapping aims. One is
clarification. Some theories and
theorists assume that the Justices of the Supreme Court do not fully comprehend
what they do. Theory can clarify for
them what they have in one sense dimly grasped but probably could not have
verbalized. Philip Bobbitt’s theory of
interpretive modalities is of this kind.
So is David Strauss’s theory of common law constitutional
adjudication. So is Bruce Ackerman’s
dualist theory. Some of Jack Balkin’s work
fits this mode as well.
The other overlapping but partly distinctive office
of constitutional theory is to propose reforms that would improve
constitutional practice but in ways that respect what the theorist takes to be the
practice’s core, implicit assumptions. Work
of this kind almost always has a political or ideological valence. Some early versions of originalism, as
promoted by Ed Meese among others, took this form. John Ely cast his representation-reinforcement
theory partly as a defense of Warren Court liberalism, though he rejected Roe
v. Wade.
The Current State of the Discipline
Unsurprisingly in light of the connections between
constitutional theory and constitutional practice, the kinds of questions that
theorists think worth addressing at any particular time tend to depend on how
they would expect their hoped-for audiences, including the Justices of the Supreme
Court, to respond to their proposals. When
I entered the legal academy, a number of leading scholars were advancing
theories of constitutional interpretation inspired by John Rawls. Today invocations of Rawls have substantially
faded from the law reviews, not because Rawlsian theory has been
philosophically discredited, but because the legal and political zeitgeist is inhospitable. The country has moved to the right. Politics have given us a very conservative
Supreme Court to which, for various reasons, arguments appealing to Rawls would
be anathema.
The felt need for constitutional theory to maintain
connections with constitutional practice made possible the outsized influence
of Justice Scalia. By inserting originalist
and textualist arguments into the mainstream of constitutional practice, Scalia
became an agenda-setter for constitutional theorists. Largely as a result of Scalia’s influence, originalism
and textualism – which theorists have developed in a depth that no working
Justice could plausibly have achieved – became exciting as much more than mere
theoretical possibilities. They riveted
attention, including from critics, because they sketched readily imaginable short-term
futures for constitutional law.
Although constitutional theory is tied to practice, theorizing
also, inevitably, has a dynamic of its own.
There are now a myriad of originalist theories, differing from each
other in sometimes important details.
Theorists, including former Scalia clerks, have sometimes found that the
internal logic of their ideas impelled them into partial disagreement not only
with each other, but also with the Justice who did most to inspire them.
Among notable developments on the originalist right,
judicial restraint – which once was hailed as an originalist virtue (to be
contrasted with the imagined free-form judicial lawmaking of jurisprudential
liberals) – is increasingly cast as incompatible with originalism’s deepest theoretical
commitment to enforce original constitutional meanings. Especially early in his career, Justice
Scalia trumpeted his acceptance of an important role for stare decisis as an
“exception” to his originalist philosophy.
Without such an exception, he thought, originalism would be intolerably
unsettling of settled practices. “I am
an originalist [but] not a nut,” he reportedly said.
But as the country moved politically to the right,
academic originalists increasingly criticized Scalia’s “faintheartedness.” Randy Barnett and Gary Lawson were among the
first to adopt uncompromisingly originalist positions. More recently, Will Baude has responded to
criticisms of originalist Justices for overruling precedents by maintaining that
the right question is not whether the rejected cases should be overturned, but why
so many decisions that might be incompatible with original meanings are left
unquestioned. (See Baude, Precedent and Discretion, 2019 Sup. Ct. Rev. 313.) Larry Solum, who
agrees with Scalia that an originalist “big bang” would be unacceptably
disruptive of settled expectations, has written of the need for originalists to
work out strategies for a gradual transition to a pervasively originalist body
of constitutional law. (See Solum,
Originalist Theory and Precedent: A
Public Meaning Approach, 33 Const. Comment. 451, 462 (2018).)
Meanwhile, among liberal or progressive constitutional
scholars who despair of persuading a majority of the Justices to adopt their
views, there is, predictably, an ongoing migration to various forms of critical
theory. Some notable work paints the
Supreme Court’s conservative Justices as agents of the political right. (See, for example, Mike Klarman’s 2020
Foreword to the Harvard Law Review).
Other constitutional theorists continue to direct multidimensional attacks
on originalism. Critical race scholars seek
to speak truth to power, but mostly without advancing interpretive proposals
that are claimed to “fit” the main outlines of existing practice. A rising generation of progressive scholars (including
my colleague Niko Bowie) is mounting assaults on the institution of judicial
review.
Amid the sea-change in
the tone of progressive constitutional theory, Jim Fleming seems an increasingly
lonely liberal voice in echoing Ronald Dworkin’s famous call for the Supreme
Court to read the Constitution to make it the “best” it can be. Indeed, if any call for Dworkinian-style
interpretation gains broad traction in the years just ahead, I expect it to be
Adrian Vermeule’s advocacy of “common good constitutionalism” rooted in the
values of the natural law tradition. (See Vermeule, Common Good Constitutionalism: Recovering the Classical
Legal Tradition (2022).)
A Challenge for Originalists as We Look
Toward the Future
I began by noting connections between the practice
of constitutional theory in the United States and judicial practice in the
Supreme Court. But as academic theorists
spin out increasingly sophisticated and ambitious originalist and textualist
theories, a notable disparity has emerged in perceptions of the current Justices,
their methods, and their agenda. While
popular commentators on the Court routinely characterize it as originalist, a
number of serious academic originalists disagree. According to them, the conservative Justices may
posture themselves as committed to the enforcement of original constitutional
meanings, but they are inconsistent in their practice.
It is a live question, in my view, whether we could
ever reasonably expect the Justices to adhere consistently to any sophisticated
version of any prescriptive constitutional theory. Although constitutional theory as practiced
in the academy needs to maintain connections to the practice of the Supreme
Court, the Justices do not, and cannot be expected to, treat consistency in
theory as their foremost professional obligation. The Justices are busy people with urgent
practical responsibilities. They are not
historians, linguists, or legal philosophers.
Among their responsibilities is to shape a reasonably just and workable
body of constitutional law for the future out of the materials that the past
has bequeathed them.
But even if we supposed that the Justices wanted to
be consistently originalist (or textualist), I do not believe that originalist
theories – as developed so far – have supplied them with adequate tools with
which to work. Here are three challenges
that I would put to originalist theorists who might reasonably hope to
influence the Supreme Court’s practice in the short-term future. Until these challenges are met, I am skeptical
that any genuinely principled form of originalism would be consistent with the deep,
implicit norms of American constitutional practice.
First, originalists
need to explain more fully than any of the Justices has explained so far how a
commitment to the enforcement of original constitutional meanings relates to
the doctrine of stare decisis, which has been practiced by every Justice of the
Supreme Court, in one form or another, from the very beginning of
constitutional history. At the present
time, it seems plain that the purportedly “originalist” Justices frequently
decide cases based on precedent, with little or no attention to original
meanings. Most of the time, moreover,
they do not claim compulsion by the doctrine of stare decisis. And if not, their practice invites the charge
that their behavior is unprincipled – that they make originalist arguments only
when it suits their purposes to do so.
For ostensibly originalist Justices to practice
originalism with principled consistency, they would need a theory of the
circumstances, if any, under which a precedent or line of precedents has become
so settled or fundamental that it should be adhered to even if it were demonstrably
incompatible with the Constitution’s original meaning. To be sure, the doctrine of stare decisis
poses a challenge to nonoriginalists as well as originalists. No one believes that the Supreme Court should
never overturn a past decision. But
originalists, who frequently accuse nonoriginalists of simply imposing their
preferences from the bench, have a special obligation to be forthcoming at
least about when originalist Justices should or must adhere to what they take
to be demonstrably erroneous precedents.
So far as I am aware, only Justice Thomas has taken a clear stand on
this question. (See Gamble v.
United States, 139 S. Ct. 1960, 1984–85 (2019) (Thomas, J., concurring) (“When
faced with a demonstrably erroneous precedent, my rule is simple: We should not
follow it.”).)
Although a number of originalist theorists have begun
to address the challenge posed by the doctrine of stare decisis, a second,
closely related challenge has attracted far less attention. This second challenge arises from the
so-called party-presentation principle.
That principle holds, to a reasonable approximation, that the Court should
normally decide the cases before it as shaped and presented by the parties. But what should originalist Justices do when
the parties offer originalist arguments that are manifestly cursory, one-sided,
or otherwise unreliable? Citing the
party-presentation principle, Justice Thomas recently wrote, in New York
State Rifle & Pistol Assn., Inc. v. Bruen, 142 S. Ct. 2111, 2130 n.6
(2022), that “[c]ourts are … entitled to decide a case based on the historical
record compiled by the parties.”
However plausible that approach might be for the
lower courts, its application in the Supreme Court could easily prove disastrous
when the parties’ briefing is poor, since a determination of constitutional meaning
will bind not only the parties, but also lower courts throughout the country. At the
same time, total rejection of the party-presentation principle also appears unacceptable. Justices who felt bound to resolve every
issue of original meaning that was posed by one of the parties, but who attempted
to conduct a professionally competent examination of the historical record, would
find themselves swamped by more research obligations than any professional
historian could manage within the time allotted.
A third challenge for originalists is closely related
to the second. In writing before she became
a judge, Justice Amy Coney Barrett counseled that originalist Justices both could
and should avoid unwanted obligations to reconsider long-settled precedents by denying
certiorari whenever they think it prudent to leave past rulings in place,
regardless of their original correctness.
(See Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1929–33
(2017).) This strategy – which I do not
doubt that the Justices practice frequently – recalls Gerald Gunther’s famous
criticism of Alexander Bickel’s counsel to the Justices to aggressively deploy
“the passive virtues” to avoid principled resolutions of cases whenever
principled decisions would be impolitic.
To paraphrase Gunther, a consistent, “principled” originalist Justice
who declined to grant cert whenever she thought that overruling a past decision
would be imprudent would be “one hundred percent principled” only in whatever fraction
of cases – which might be very small – she and/or a sufficient number of her
colleagues thought it expedient to reconsider arguably nonoriginalist
precedents.
Originalism that is practiced only on a deliberately
selective basis, as a result of strategic deployment of the cert jurisdiction,
would seem to me to be hard to justify on originalist premises. If it is important as a matter of principle
for the Supreme Court to decide cases consistently with the Constitution’s
original meaning, the operative principle would seem to me to extend to many of
the cases that the originalist Justices, for pragmatic or ideological reasons,
would prefer not to confront on the merits.
But I offer that judgment only provisionally. I would be eager to hear what more originalist
theorists have to say about strategic denials of certiorari as a mechanism for insulating
many arguably nonoriginalist precedents from reconsideration.
For the moment, my prediction is that the challenges to originalist theory and practice that I have just laid out will increasingly lead conservative constitutional theorists either to reject the currently leading versions of originalism or to find ways to temper or supplement them. The most attractive path for conservative constitutional theory, I would further speculate, may involve the development of theories that link constitutional interpretation to substantively conservative political morality. As I suggested above, Vermeule’s recent book, which may serve as an exemplar of this approach, highlights respects in which his theory of constitutional interpretation bears affinities to Ronald Dworkin’s. If that common ground proves fertile, it is also possible that the seeds of a new generation of progressive constitutional theories may one day take root within it, though I expect that development to take more time.
Richard Fallon is Story Professor of Law, Harvard Law
School, and an affiliate member of the Harvard Government Department. His email address is rfallon@law.harvard.edu.