December 5, 2011 columns

Recent Developments in Originalism

Pope discusses the relationship between libertarianism and originalism, indicating that not all originalist are libertarian.

Though libertarianism does not commit one to originalism, libertarianism and originalism go hand-in-hand in the sense that many libertarians are also originalists (and some forcefully argue that originalism implies a libertarian polity). For readers who are originalists, I thought I would flag an interesting cluster of posts on originalism by Greg Magliocca, Jack Balkin and Lawrence Solum (Magliocca’s and Balkin’s posts: here, here, here, here, and here; Solum’s posts: here and here). The original motivation for Magliocca’s first post seems to be Stephen Calabresi and Julia Rickert’s new article arguing that the original meaning of Section One of the Fourteenth Amendment prohibits sex discrimination. (National Review’s Ed Whelan has a series of posts explaining and criticizing the Calabresi-Rickert article, to which Jonathan Adler helpfully links here.)

While there are lots of interesting points floating in the Magliocca-Balkin-Solum exchange, it is hard to get a read on the proposition under debate because Magliocca’s posts are a shifting target. He motivates his worry (whatever it is exactly) by observing that various constitutional scholars have argued that the original meaning of the Constitution is compatible with recent constitutional doctrine – abortion is a right, racial segregation and gender discrimination are unconstitutional – that marks a sharp break with points in our past. As he puts it:

Richard Nixon once said that “we are all Keynesians now,” and constitutional theory is approaching the point where we are will all be originalists. Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack [Balkin] defends the Court’s abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist. [NB: Magliocca is behind the times. Someone’s actually already told us that upholding the individual mandate is originalist. Balkin also defends affirmative action on originalist grounds]

This passage suggests that Magliocca’s concern is that scholars are making various ad hoc moves – either tweaking originalism at the theoretical level, or misapplying it to particular constitutional questions – to generate results that they find congenial for non-originalist reasons. In other words, it sounds like Magliocca’s charge will be that “originalism in action” lacks integrity; when applied to concrete constitutional problems, originalist theory and historical fact are opportunistically manipulated to make originalism seem more morally attractive and show that it yields constitutional decisions that are actually desirable on other grounds. (Presumably this manipulative project is worthwhile because of the rhetoric of originalism’s grip on the popular constitutional imagination, which makes it an effective means of advancing political ends. See e.g. Laying Claim to the Constitution, which argues that progressives had better become originalists, because originalism is the ascendant rhetoric of constitutional law.)

But then Magliocca changes tack. Instead of arguing that originalism in action is bankrupt, he focuses on high originalist theory. That is, he argues that even confining our attention to the development and justification of methods of constitutional decision-making (as opposed to the interpretation and application of those methods in the context of specific constitutional issues), calling an approach”originalist” no longer tells us anything about its commitments or implications. This leads him to defend the absurd proposition that Dworkin’s law as integrity and Strauss’s “common law constitutionalism” both qualify as originalist.

It is here that Balkin and Solum enter the fray, correctly observing that when we confine our attention to high constitutional theory there is a clear sense in which originalism is a distinctive option. (A definitive work of high originalist theory is Solum’s “Semantic Originalism,” and Balkin recently published his own statement in Living Originalism.)

Hence Balkin, channelling Solum, argues that originalism is a distinctive set of approaches to interpreting the constitution because for a theory to be originalist it must have three commitments that are capable of being (and, indeed, have been) denied:

  1. Constitutional meaning is fixed at the time of the adoption or amendment of the constitution;

  2. What is fixed cannot be altered except through Article V amendment process; and

  3. What is fixed matters to correct constitutional interpretation.

Solum, meanwhile, seeks to show how Magliocca’s attempt to classify Dworkin’s and Strauss’s theories of constitutional interpretation as originalist fails because neither theory respects Balkin’s first commitment (what Solum has called The Fixation Thesis):

Dworkin accepts the idea that the text of the Constitution is a starting point for constitutional doctrine, but constitutional law is a function of the theory that best fits and justifies our whole institutional practice, and hence it can be appropriate for courts to decide cases in ways that are inconsistent with the original meaning of even the “hard wired” provisions of the Constitution. And Strauss might give the text some weight in constitutional adjudication, but his common law approach to the development of constitutional doctrine is not bound by the original meaning of the text. Indeed, the most popular rival to originalism today (some version of Bobbitt’s multiple modalities view or Stephen Griffin’s pluralist approach) explicitly rejects the idea that the text has lexical priority among the various considerations that (according to pluralism) are the appropriate sources of constitutonal reasons.

Solum and Balkin are plainly right that theoretical formulations of originalist methodology are distinct from other methodological positions. They are also plainly right that Magliocca has committed himself to the contrary position, and that the contrary position is untenable. But they ignore, probably because Magliocca himself declines to pursue it very far, Magliocca’s initial suggestion that originalism is unhelpful because of how it gets used by the broader community of originalist scholars. If not ultimately correct, this seems a more promising line.

The general suggestion here – it is controversial, over-generalized and difficult to test – would be that scholars sympathetic to originalism who apply (or purport to apply) originalist methods to concrete constitutional issues engage in motivated reading of constitutional history and subtle reinterpretations of originalist theory both to get results that keep originalism practically viable and to put it to use promoting ends that the originalist scholar finds politically desirable (i.e. desirable for non-originalist reasons).* This would explain why (1) all originalist scholars agree that Brown v. Board of Education was correctly decided and there is a growing consensus that sex discrimination is contrary to the original meaning of the Fourteenth Amendment, but (2) conservative and libertarian originalists (Ilya Somin, Randy Barnett) split with progressive originalists (Jack Balkin, Akhil Amar) on whether the Constitution is broadly libertarian or broadly progressive.

These two facts call out for explanation because originalism purports to be an approach to constitutional interpretation that, if it is not politically neutral, at least does not give the originalist interpreter’s personal political values pride of place. If progressives looking through an originalist lens see a progressive document, libertarians a libertarian document, and both see a document that looks good enough that their theory isn’t embarrassing to contemporary sensibilities then there is a prima facie case that non-originalist commitments are driving originalist scholarship. If this is true then you can make the case that originalism is not helpful. For it is then perfectly intelligible to ask: if you can make originalist arguments for and against any important constitutional decision then how is originalism – not rarefied theories of it, but originalism in action an approach with “meaningful limits” (as opposed to a generalized brand name that, as Magliocca would have it, “robs [the public] of a clear differentiation between products” while purchasing for each product that can capture it the political legitimacy that comes with the originalist label)?

I’d note, in closing, that this is far from an unanswerable critique. One response, as I suggest in a footnote, is that originalism is distinctive as a particular form of ethical argument, and that form supplies the limits of originalist argumentation.

Another possibility is that progressive and libertarian originalists disagree because the historical questions are hard, not because their methodology is ideological. That their disagreements are the disagreements of historians, not political foes, is arguably attested by the fact that libertarian and progressive originalists have reached consensus before. Balkin and Amar both admitted at “Originalism 2.0” that the original meaning of the Second Amendment protects an individual right to keep and bear arms, and both Cato and the Center for Constitutional Accountability agree that the Privileges or Immunities Clause embodies a similar right vis-a-vis the states.

A third possibility is that progressive originalism is a politically motivated reaction to the original, purely historiographically motivated originalists who discovered that the Constitution is basically a libertarian document — thus, only one-side is applying the methodology in an ideological way. (The fact that many early originalists such as Bork and Rehnquist were also, perhaps first and foremost, conservatives and libertarians militates against this contrast. For an introduction to the intellectual history of originalism see this excellent essay by Keith Whittington).

Finally, a fourth reply is that even if “originalism in action” is politicized, that is no strike against the theory of originalism. The fact that few correctly apply an interpretive methodology doesn’t mean it isn’t the correct approach to constitutional interpretation or decision-making.

Nonetheless, the striking reality that there are progressive and libertarian originalists should be more discomfiting to proponents of originalism then the curious claim that there’s no difference between Solum’s Semantic Originalism and Strauss’s Common Law Constitutionalism.

* This does not necessarily mean that those who seek to apply originalism to specific problems of constitutional law are disingenuous. For example, if what I’ve been calling “originalism in action” is a form of ethical argument – i.e. argument about our national identity, and how we should construct the significance of the founding era – then they are simply abiding by the rules of the game.

Update: I just saw Andrew Koppelman’s reaction to the exchange between Magliocca and Balkin, which is here. It deals with what I call “originalism in action.” It also explores the possibility that originalism is ethical argument in great depth — evidence for this proposition is that originalists are committed to certain substantive results (such as Brown v. Board of Education) that have become part of our national identity. It’s an excellent read.