The Legitimacy of Particular Conceptions of Constitutional Interpretation
NAME: Michael J. Perry *
LEXISNEXIS SUMMARY: ... A different distinction, articulated by Grey's and Ely's colleague Paul Brest, has achieved rhetorical dominance: the distinction between "originalist" and "nonoriginalist" approaches to constitutional interpretation. ... The breadth of the most general aspect of the original understanding of a constitutional provision can be crucial: If the most general aspect of the original understanding of the equal protection clause, for example, is focused on discrimination based on race, then, for an originalist judge, the clause is not implicated, much less violated, by discrimination based on sex. ... In the preceding Part, I argued that originalism entails nonoriginalism, that although we should all be originalists, we must all be nonoriginalists, too: The originalist approach to constitutional interpretation necessarily eventuates in nonoriginal meanings; over time an originalist approach to the interpretation of a constitutional provision yields a provision whose present meaning is different from -- in particular, is fuller than -- its original meaning, whose present meaning goes beyond the original meaning. ... It seems more consistent with the premises of originalism to treat the ratifiers' judgment that a particular practice violated a provision they were ratifying as an aspect (a relatively specific aspect) of the authoritative original meaning of the provision. ...
TEXT: [*669] THE master distinction of Democracy and Distrust n1 is interpretivism/noninterpretivism, which Tom Grey first articulated n2 and John Ely later used in his book. n3 The distinction is now defunct, as a penitential Grey confessed several years ago: "We are all interpretivists; the real arguments are not over whether judges should stick to interpreting, but over what they should interpret and what interpretive attitudes they should adopt." n4 A different distinction, articulated by Grey's and Ely's colleague Paul Brest, n5 has achieved rhetorical dominance: the distinction between "originalist" and "nonoriginalist" approaches to constitutional interpretation. The originalist approach to constitutional interpretation -- that is, the particular originalist approach I defend in this Article n6 -- is substantially the "interpretivist" approach Ely discussed in his book. n7 In this Article, I criticize two approaches to
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constitutional interpretation: the nonoriginalist [*670] approach and the nonoriginalist-textualist approach. The nonoriginalist approach is substantially the "noninterpretivist" approach discussed by Ely. Ely did not discuss an approach equivalent to the nonoriginalist-textualist approach; perhaps it did not occur to him that anyone would take seriously a textualist approach that was not also "interpretivist." ("Noninterpretivist-textualist" does seem oxymoronic.)
The basic argument of Democracy and Distrust, terminologically revised to reflect changes in constitutional rhetoric since the time Ely wrote, proceeds in several stages:
First. Ely argues that the originalist approach to constitutional interpretation is "comparatively" attractive. n8 He is right: In this Article I explain why the originalist approach is comparatively attractive -- more attractive than either the nonoriginalist or the nonoriginalist textualist approach, the two principal competitor approaches.
Second. Ely argues that a "clause-bound" originalist approach -- an approach confined to enforcing, and, therefore, to interpreting, principles that are either named by the various clauses (provisions, etc.) of the constitutional text or inferred from principles that are so named n9 -- is at least prima facie inconsistent with a court's, in particular the Court's, duty to enforce/interpret the Constitution. According to Ely, certain provisions of the Constitution -- particularly, the ninth amendment n10 and the privileges or immunities clause of the fourteenth amendment n11 -- refer to, without naming, certain constitutional principles (rights, privileges, immunities), and a court ought not to abdicate enforcement/interpretation of those "unenumerated" principles, any more than it ought to abdicate enforcement/interpretation of the "enumerated" ones, unless "a principled approach to judicial enforcement of the Constitution's open-ended provisions cannot be developed, one that is not hopelessly inconsistent with our nation's [*671] commitment to representative democracy." n12 The reading of the original meaning of the ninth amendment to which Ely subscribes, n13 although not uncontroversial, n14 remains quite plausible. n15 Similarly, the reading of the original meaning of the privileges or immunities clause to which Ely subscribes, n16 although not uncontroversial, n17 remains quite plausible. n18 For anyone (lawyer, judge, scholar) who credits those readings, the challenge therefore remains: Can a principled approach to judicial enforcement of the Constitution's open-ended provisions be developed?
Third. Ely argues that various approaches to judicial enforcement of the Constitution's open-ended provisions are unprincipled -- approaches counseling judicial reasoning grounded in such normative sources as "the judge's own values," "natural law," "tradition," or "consensus." n19 There are two serious problems with this stage in the basic argument of Democracy and Distrust. First, Ely's sole criterion for judging whether an approach is principled is the approach's consistency "with our nation's commitment to representative democracy." n20 To assume that the ideal of representative democracy is the only relevant axiom of American political-legal culture is deeply problematic. The ideal of human rights has become axiomatic, too, at least since the end of the Second World War. (Indeed, the ideals of representative democracy and of human rights are, for us Americans, interdependent -- and now we present them to the world as such.) Whether an approach is principled -- whether an approach is, as a
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political-moral matter, legitimate -- seems to depend on the extent to [*672] which the approach accommodates the ideal of human rights as well as the ideal of representative democracy. The second problem with this stage in the argument is Ely's impoverished conception of the kind of normative reasoning available to judges enforcing the Constitution's open-ended provisions. n21
Fourth. Ely elaborates, and defends as "principled" in the sense of "consistent with the nation's commitment to representative democracy," his now-famous "participation-oriented, representation-reinforcing approach" n22 to judicial enforcement of the Constitution's open-ended provisions. n23 If there is to be judicial enforcement of the Constitution's open-ended provisions, the courts may concern themselves with "questions of participation." n24 There are, however, two fundamental inquiries. First, should there be judicial enforcement of the Constitution's open-ended provisions: Do the reasons that arguably justify judicial enforcement of the Constitution's other provisions also justify judicial enforcement of the open-ended provisions? If not, do some other reasons justify it? Second, if there is to be judicial enforcement of the Constitution's open-ended provisions, should the courts confine themselves to "questions of participation," or may they legitimately address questions of other kinds as well? If so, what other kinds?
Ely's book is addressed to the choice between "substantive versus participational review." n25 Ely contends against the former and for the latter (insofar as the Constitution's open-ended provisions are concerned). Inter alia, Ely contends for judicial enforcement against the federal government, under the ninth amendment, of the participational norm of equal protection named/enumerated by the fourteenth amendment (which, by its terms, applies only to state governments); he contends, also, for judicial enforcement against state governments, under the privileges or immunities clause of the fourteenth amendment, [*673] of the participational norms named/enumerated by the Bill of Rights (the relevant provisions of which apply only to the federal government). Is such "participation-oriented, representation-reinforcing" review the only principled/legitimate mode of judicial enforcement of the Constitution's open-ended provisions?
Assume that not every norm named or implied by the Bill of Rights is best understood as participational: Is a Bill of Rights norm's status as "nonparticipational" a conclusive reason for declining to enforce it against the states under the privileges or immunities clause? Similarly, if not every norm named or implied by the fourteenth amendment is best understood as participational, is the status of a fourteenth amendment norm as nonparticipational a conclusive reason for refusing to enforce it against the federal government under the ninth amendment? If the answer to the last two questions is no, and if, as Ely seems to argue, there are unenumerated participational norms -- participational norms neither named nor implied by either the Bill of Rights or the fourteenth amendment -- that can legitimately be enforced against the federal government (under the ninth amendment) and against state governments (under the privileges or immunities clause), might there not be some unenumerated nonparticipational norms that can legitimately be enforced as well? To the extent Ely
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has addressed such questions in Democracy and Distrust, he has not achieved closure. Democracy and Distrust is a great work of constitutional theory, but many of the questions it addresses remain very much alive.
My basic aim in this Article is to explain why the debate about the legitimacy of particular conceptions of constitutional interpretation -- originalist, nonoriginalist, and nonoriginalist-textualist -- is now largely spent. That the debate is spent does not date Ely's book, however, because many of the most basic questions addressed in Democracy and Distrust -- and the related questions articulated in the preceding paragraph -- are best understood as arising within the context of originalism: questions for those of us (lawyers, judges, scholars) for whom a certain reading of the original meaning either of the ninth amendment or of the privileges or immunities clause (or of both) is most plausible. They are best understood, therefore, not as questions about the legitimacy of this or that conception of constitutional interpretation (though the questions do presuppose the superiority of the originalist conception of constitutional interpretation). [*674] They are best understood, rather, as questions about the character of American politics and, especially, about the proper role of the courts (in adjudicating constitutional conflicts) in American politics.
In the final Part of this Article, I briefly suggest why questions about politics and proper judicial role (rather than tired, spent questions about the legitimacy of particular conceptions of constitutional interpretation) are now the very heart of the inquiry we call constitutional theory. It is a testament to the quality of John Ely's book that over a decade after its publication, at a time when debates about the legitimacy of different conceptions of constitutional interpretation seem increasingly to have played themselves out, Democracy and Distrust remains a vital text for anyone who would do constitutional theory -- for anyone, that is, who would address, in the context of constitutional adjudication, questions about politics and judicial role. n26
I
The legitimacy of particular conceptions of constitutional interpretation -- their legitimacy for purposes of constitutional adjudication -- has been a serious issue for many Americans. It has been a serious issue, in particular, for many public officials, and it has been an urgent practical issue for many judges. n27 What reasons are there, if any, for supporting, or for opposing, this or that conception of constitutional interpretation, of what it should mean, especially for a court, to "interpret" the Constitution? What approach to constitutional interpretation should inform the practice of judicial review? I evaluate here three competing conceptions of, or approaches to, constitutional interpretation -- the three conceptions/approaches most often discussed in the literature of contemporary constitutional theory.
To ask about a constitutional provision, or about any text, "What does it say?" is not the same as asking "What does it mean?" But if there is, in a community, a widely shared understanding of a text, we should not be surprised if the question "What does it mean?" elicits the impatient reply "It means what it says!" Consider, for example, article I of the United States Constitution, which provides, inter alia, [*675] that "[t]he Senate
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of the United States shall be composed of two Senators from each State." n28 Because there is a widely shared understanding of that provision, n29 the question "What does the provision mean?" seems strange. We might be tempted to reply -- even though the object of the question is not what the provision says but what it means -- "It means what it says, that there shall be two senators -- no more, no less -- from each state." This is not to deny that to say of a text "It means what it says!" is to interpret the text, just to emphasize that the question "What does it mean?" seems somewhat strange in the presence of a widely shared understanding of the text.
By contrast, consider the equal protection clause of the fourteenth amendment: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." n30 Because there is no widely shared understanding of the clause, the question "What does the clause mean?" does not seem at all strange; by contrast, the reply "It means what it says!" would seem strange, even perverse. Indeed, because there are competing understandings of the clause -- competing understandings both intratemporally, in the present, and intertemporally, between past and present (in particular, between the time the clause was drafted and the present) -- the question "What does the clause mean?" is incomplete. What does (did) the clause mean to whom, how is (was) it understood by whom?
Many of the most important constitutional provisions -- in particular, many constitutional provisions regarding human rights -- are like the equal protection clause: there is not only no widely shared understanding of the provisions; there are competing understandings, both intratemporally and intertemporally. According to Robert Bork, the authoritative understanding of a constitutional provision, at least insofar as constitutional adjudication -- the practice of judicial review -- is concerned, is the "original" understanding: the understanding of the provision by the polity, "the public," on behalf of whom the provision was ratified. (The point can be put in terms of "meaning." For Bork the authoritative meaning is the original meaning: the meaning of the provision to the public on whose behalf it was ratified. To speak of how a text is understood by a person is to speak [*676] of what the text means to her, and vice versa.) Bork's conception of constitutional interpretation is, in that sense, "originalist." In an important, clarifying passage in his recent book, Bork writes:
Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean. If Congress enacted a statute outlawing the sale of automatic rifles and did so in the Senate by a vote of 51 to 49, no court would overturn a conviction because two senators in the majority testified that they really had intended
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only to prohibit the use of such rifles. They said "sale" and "sale" it is. Thus, the common objection to the philosophy of original understanding -- that Madison kept his notes of the convention at Philadelphia secret for many years -- is off the mark. He knew that what mattered was public understanding, not subjective intentions. Madison himself said that what mattered was the intention of the ratifying conventions. His notes of the discussions at Philadelphia are merely evidence of what informed public men of the time thought the words of the Constitution meant. Since many of them were also delegates to the various state ratifying conventions, their understanding informed the debates in those conventions. . . . [W]hat counts is what the public understood. Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like. n31
[*677] The version of originalism embraced by Bork -- "objective meaning" originalism as distinct from "subjective intentions" originalism n32 -- is not the only version, but is the most sophisticated.
But why should a constitutional provision's "objective meaning" to the public at the time the provision was ratified -- rather than its meaning to the ratifiers of the provision, or to the proposers and the ratifiers of the provision -- be authoritative? The answer is political-theoretical: It is the meaning to, or the understanding of, those, the enfranchised, in whom sovereignty ultimately resides and on whose behalf the ratifiers acted -- those the ratifiers "represented" -- that should matter. n33 Because not all members of the relevant public invariably pay attention, however, and because not all who do pay attention, or try to, invariably achieve access to all relevant information, we should say, with Bork, that it is what the public "would have" understood that should matter. It seems a fair working hypothesis that what the ratifiers (who do pay attention and who do, presumably, achieve access to all or most of the relevant information) understood a proposed constitutional provision to mean is substantially what the public they represented understood, or at least would have understood, the provision to mean (had they been paying attention and had they achieved access to the relevant information), so that the ratifiers' understanding can be taken, at least provisionally, as an adequate approximation of the original public understanding.
The original (public) understanding of a constitutional provision, however, can be complex rather than simple. Assume, for the sake of discussion, that the equal protection clause was originally understood to forbid state governments to deny to black persons the rights "to [*678] make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property . . . enjoyed by white citizens." n34 Assume that the clause was also understood, more generally, to forbid state governments to discriminate on the basis of race with respect to certain "privileges or immunities" n35 (including, but not limited to, those listed in the preceding sentence). Assume, finally, that the clause was also understood, more generally still, to forbid state governments to discriminate, with
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respect to certain kinds of privileges and immunities, on the basis of any "irrational prejudice." n36 According to Borkean originalism, the authoritative understanding of a constitutional provision is the original understanding. Which of the three (assumed) understandings of the equal protection clause is, for purposes of Bork's originalist conception of constitutional interpretation, the original understanding? As the trio of assumptions illustrates, the original understanding of a constitutional provision can be complex, subsuming both relatively specific and relatively general understandings. Each of the three understandings (meanings) of the equal protection clause is an aspect of the overall, complex original understanding (meaning); n37 each is, therefore, authoritative.
The breadth of the most general aspect of the original understanding of a constitutional provision can be crucial: If the most general aspect of the original understanding of the equal protection clause, for example, is focused on discrimination based on race, then, for an originalist judge, the clause is not implicated, much less violated, by discrimination based on sex. If, however, the most general aspect is focused on discrimination based on irrational prejudice, the clause [*679] may well be implicated, and even violated, by sex-based discrimination. At what level of generality should a judge articulate the most general aspect of the original understanding of a constitutional provision?
Bork answers:
The role of a judge committed to the philosophy of original understanding is not to "choose a level of abstraction." Rather, it is to find the meaning of a text -- a process which includes finding its degree of generality, which is part of its meaning. . . . [A] judge should state the principle at the level of generality that the text and historical evidence warrant. . . .
[Originalism] avoids the problem of the level of generality . . . by finding the level of generality that interpretation of the words, structure, and history of the [constitutional provision] fairly supports. n38
According to (Borkean) originalism, then, a judge should try not to articulate the most general aspect of the original understanding of a constitutional provision at a level of generality any broader than the relevant materials ("words, structure, and history") warrant.
Commenting on the passage by Bork quoted in the preceding paragraph, Ronald Dworkin writes:
This is opaque advice. The problem a judge "committed" to original understanding has is not deciding what an abstract provision says -- it says something as abstract as the words it uses -- but deciding what impact it has in concrete cases. He is trying to establish the Constitution's meaning in that sense, and it is no help to tell him that he must first discover its meaning. n39
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I don't get Dworkin's point. Bork does not suggest, nor does his advice presuppose or entail, that the problem an originalist judge faces is deciding what a constitutional provision, abstractly worded or otherwise, says. Bork understands that the problem is deciding what the provision means. In particular, the problem is deciding what the provision means in two senses: first, deciding what political-moral principle (or principles) the provision represents; and, second, deciding what that principle means, what it requires, in the context of the case at hand. n40 An originalist judge must first "discover" the provision's [*680] meaning, in the sense of discerning the principle it represents, before she can decide what the principle means for the particular conflict at hand and, therefore, what it shall mean for relevantly similar conflicts thereafter -- before she can, in that sense, "establish" the meaning of the principle. A judge cannot do the latter until she has first done the former. Bork's advice is not opaque. Dworkin's claim that Bork's advice is opaque, however, is opaque.
Perhaps Dworkin supposes that the question of a constitutional provision's meaning is a nonquestion. Perhaps he supposes, for example, that the question "What does the equal protection clause mean, what principle does it represent?" is not a serious question. If Dworkin were to try to minimize the question by answering (impatiently?) "It means what it says, that no state shall deny any person in its jurisdiction the equal protection of the laws; that is the principle it represents!" he would have answered the wrong question. The right question is directed not at what the clause says, but at what it means, in the sense of the principle(s) it represents. As an answer to that, the right question, Dworkin's answer would be unhelpful because, as I stated at the beginning of this Article, no widely shared understanding of the equal protection clause exists; indeed, there are competing understandings, both intratemporally and intertemporally. Therefore, the question of what the clause means -- in particular, the question of what its authoritative (for Bork, its original) meaning is -- cannot usefully be answered by a statement of what the clause says. The question of a constitutional provision's meaning is a serious question in the absence of a widely shared understanding of the provision, and a judge must first answer the question before "establishing," in the context of the case at hand, the meaning of the principle.
None of this is to deny that following Bork's advice -- deciding what level of generality the relevant materials warrant -- may often be a difficult task. It is a mistake -- for some, it is wishful thinking -- to suppose that the originalist approach to constitutional interpretation is always, or even often, easy. The originalist approach is often difficult. n41 It is a mistake, too, to suppose that the originalist approach [*681] always, or even often, significantly constrains judicial "discretion." The originalist approach often leaves ample room not only for honest differences among originalist judges about how a case should be decided -- a point I develop later -- but also for dishonest differences. As Bork acknowledges, "[E]ven a judge purporting to be [an originalist] can manipulate the levels of generality at which he states the [ratifiers'] principles. . . . [E]ven under [originalism] there are no safeguards against that except the intellectual honesty of the judge and the scrutiny of an informed profession that accepts the premises of [originalism]." n42 To say that originalist judges can act in bad
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faith is to say something that can be said about judges whatever their conception of constitutional interpretation.
It is important to distinguish between the kind of originalism I am sketching here (with the help of passages from Bork's recent book and some of his other writings), which may be called sophisticated originalism, and an unsophisticated version often the target of critics [*682] of originalism. n43 Assume that an aspect of the original understanding of the equal protection clause is that states are not to discriminate on the basis of race with respect to certain privileges or immunities. Assume further that the ratifiers (whom we are accepting as a provisional proxy for the public they represented) happened not to think that the clause proscribed racially segregated public schools. According to the unsophisticated version of originalism, segregated schools therefore do not violate the clause and may not legitimately be disestablished in the name of the clause. n44 According to the sophisticated, Borkean version, however, the question whether segregated schools violate the clause -- the clause as originally understood -- is not to be referred to the past: It is a question for the present; in particular, it is a question for the court charged with determining whether such schools violate the clause. What is authoritative, for sophisticated originalism, is the principle (or principles) the ratifiers understood themselves to be establishing. (More precisely, what is authoritative is the principle that the enfranchised public understood, or would have understood, the ratifiers to be establishing.) That the ratifiers (i.e., the public they represented) may not have thought that this or [*683] that practice (law, etc.) with which they were familiar violated a principle they were establishing -- even that they thought that the practice did not violate the principle -- seems beside the point. n45 If, in the court's view, a law does in fact violate a principle the ratifiers established, the court's duty is to invalidate the law. (Of course, that the ratifiers thought that a practice with which they were familiar did not violate a constitutional provision they were ratifying is some evidence of the principle (or principles) the ratifiers understood themselves to be establishing. In particular, it may suggest that the principle (or, if there is more than one, the most general of the principles) the ratifiers understood themselves to be establishing does not have precisely the shape (e.g., the breadth) we might otherwise have been inclined to think.)
A fortiori, that a law is one with which the ratifiers were not familiar -- one they did not foresee and perhaps could not have foreseen -- and, therefore, one they could not have thought violated the principle they were establishing, is beside the point. The court's duty, according to sophisticated originalism, is to invalidate a law -- whether or not the law was foreseen or even foreseeable by the ratifiers -- if in the court's view the law violates a principle established by the ratifiers. As Bork puts it:
[A]ll that a judge committed to [the philosophy of] original understanding requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a major premise. That major premise is a principle or . . . value that the ratifiers wanted to protect against hostile legislation or executive action. The judge must then see whether that principle or value is threatened by the statute or action challenged in the case before him. The answer to that question provides his minor
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premise, and the conclusion follows. It does not follow without difficulty, and two judges equally devoted to the original purpose may disagree about the reach or application of the principle at stake and so arrive at different results, but that in no way distinguishes the task from the difficulties of applying any other legal writing.
This version of [originalism] certainly does not mean that judges will invariably decide cases the way the men of the ratifying conventions would if they could be resurrected to sit as courts. Indeed, the [*684] various ratifying conventions would surely have split within themselves and with one another in the application of the principles they adopted to particular fact situations. That tells us nothing other than that the ratifiers were like other legislators. Any modern congressional majority would divide over particular applications of a statute its members had just enacted. That does not destroy the value of seeking the best understanding of the principle enacted in the case either of the statute or of the Constitution. n46
The originalism I evaluate in this Article is the sophisticated, Borkean version. n47
Many criticisms of the originalist conception of [*685] constitutional interpretation have force if directed against an unsophisticated version of originalism. If directed against sophisticated originalism, however, as such criticisms often are, n48 they have much less, if any, force. Richard Kay has effectively rebutted the principal conceptual and practical criticisms of originalism -- criticisms to the effect that it is virtually impossible to discern the original understanding of a constitutional provision, or even to know where one would look to find it, because of a variety of conceptual and practical difficulties with the originalist approach. The reader concerned with such criticisms could do no better than to consult Kay's work. n49 Remarkably, today some critics of originalism trot out the frayed claims to which Kay has elaborately responded without citing his work, much less attending to it. n50 More remarkably, Bork failed to rely on, or even to mention, Kay's work; Bork does not respond to the relevant criticisms, or even identify them, nearly as well as Kay. Not that Kay minimizes the practical difficulties that attend the originalist approach to constitutional adjudication; Kay is at least as sensitive to those difficulties as the critics whose arguments he so effectively parries. n51
[*686] The serious question concerns not the possibility but the legitimacy of the (sophisticated) originalist conception of constitutional interpretation: The serious question is not whether the originalist conception can inform the practice of judicial review -- it can -- but whether it should inform the practice.
II
To that question one might fairly respond: "The originalist conception as opposed to what? What are the choices?" We can imagine two "non-originalist" conceptions of constitutional interpretation, each of which competes both with the originalist conception and with the other nonoriginalist conception. The first nonoriginalist conception, which I shall call "nonoriginalist textualism," is, like originalism, exclusively text-based, or "textualist": Nonoriginalist textualism confines a judge to enforcement of principles (policies, etc.) communicated either directly (by naming) or
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indirectly (by referring to without naming) by the text -- the written text -- of the Constitution. n52 The other nonoriginalist conception, which I shall call simply [*687] "nonoriginalism," n53 does not so confine a judge (and therefore is not exclusively textualist).
Nonoriginalism holds that a judge may enforce not only principles communicated directly or indirectly by the constitutional text; a judge may also enforce some political-moral principles not communicated, even indirectly, by the constitutional text (as originally understood or otherwise). Nonoriginalist theories can be differentiated from one another according to which political-moral principles a particular theory specifies as enforceable. Although nonoriginalism does not confine a judge to enforcement, and, therefore, to interpretation, of the Constitution as written, neither does it exclude enforcement/interpretation of the written text. No conception of constitutional interpretation that excluded interpretation of the written text would be taken seriously. A nonoriginalist theory can even be conjoined with an originalist approach to interpretation of the constitutional text. The difference between such a theory and originalism is that originalism confines a judge to (originalist) interpretation of the text.
It seems difficult, in American political-legal culture, to make a persuasive case for nonoriginalism (as distinct from nonoriginalist textualism). That difficulty helps to explain why it is so hard to locate a real, live nonoriginalist, whether judge or, even, academic theorist. n54 Nonoriginalist judicial review seems fundamentally antithetical to [*688] basic axioms of modern American political-legal culture. The invalidation of a statute by a judge (especially an electorally unaccountable federal judge with life tenure) in the name of "the Constitution" on the ground that the statute violates a political-moral principle not communicated directly, or even indirectly, by the constitutional text is an exercise of power not easily justified -- and probably not justifiable -- by any familiar first principles of modern American political or jurisprudential thought.
A justification for the practice of judicial review bears significantly on the question of the legitimacy of particular conceptions of constitutional interpretation: The particular justification one credits constrains the answer one may give to the question of the legitimacy of this or that conception of constitutional interpretation. One justification for judicial review presupposes and implicitly appeals to the fact that "the Constitution" -- the American system of countermajoritarian legal limits on government -- is, in each and all of its various parts, a written text. Crediting that justification -- in particular, assuming that "the Constitution" is indeed a written text -- it seems unlikely that there is a plausible justification for an approach to constitutional interpretation that countenances a judge enforcing principles not communicated, even indirectly, by the constitutional text. Of course, one can credit a different justification for judicial review, one that does not presuppose that "the Constitution" is wholly a written text. I doubt, however, that any such different justification would be effective in modern American political-legal culture. Recalling that Chief Justice John Marshall's justification for the
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practice of judicial review in Marbury v. Madison n55 appealed to the writtenness of the Constitution, n56 Michael Moore has commented:
Judicial review is easier to justify if it is exercised with reference only to the written document. . . .
[*689] By now, the object of [constitutional] interpretation should be clear: it is the written document. Hugo Black was right, at least, about this. Black's Constitution -- the one he was so fond of pulling out of his pocket -- is our only Constitution. n57
None of this is to deny that in enforcing, and, therefore, in interpreting, and, therefore, in particular, in specifying an indeterminate "political-moral principle communicated directly or indirectly by the constitutional text," a judge will often have to rely on normative materials not communicated directly or indirectly by the constitutional text. n58 To challenge the legitimacy of nonoriginalism is not to challenge the legitimacy -- indeed, the sheer necessity -- of relying on normative materials not communicated by the constitutional text in the course of enforcing/interpreting/specifying indeterminate normative materials communicated by the text, including indeterminate political-moral principles communicated by the text as originally understood. n59
The serious competitor to originalism -- if originalism has a serious competitor -- seems to be, then, not nonoriginalism, but nonoriginalist textualism. How serious a competitor is it? According to nonoriginalist textualism, some understanding of the constitutional text, or at least of some provisions of the text, other than the original understanding, is authoritative for purposes of constitutional adjudication. n60
Nonoriginalist-textualist theories can be differentiated from one another according to which "non-original" understanding a particular theory specifies as authoritative.
The basic case against nonoriginalist textualism is simultaneously the basic case for originalism, and the case seems compelling. Again, a justification for the practice of judicial review bears on the question of the legitimacy of particular conceptions of constitutional interpretation. [*690] One justification for judicial review presupposes and implicitly appeals to the fact that "the Constitution," in each and all of its various parts, is an intentional political act of a certain sort: an act intended to establish not merely particular configurations of words, but particular political-moral principles (policies, states of affairs, etc.), namely, the principles the particular configurations of words were understood to communicate. n61 The fundamental reason any part of the Constitution -- any provision of the constitutional text -- was ratified is that the ratifiers wanted to establish, and thought that in ratifying the provision they were establishing, a particular principle or principles: the principle(s) they understood the provision to mean or to communicate either directly, by naming the principle, or indirectly, by referring to it without naming it. n62 Crediting that justification -- assuming that "the Constitution" is wholly an intentional, political act of the indicated sort -- it seems unlikely that there is a plausible justification for a conception of constitutional interpretation that countenances a judge enforcing principles that those responsible for the Constitution did not intend to establish, even indirectly. Although one can credit a different justification
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for judicial review, one that does not presuppose that "the Constitution" is wholly an intentional political act of the indicated sort, it is difficult to imagine what that different justification might be.
In the absence of that different justification, and assuming that a particular constitutional provision is deemed authoritative for purposes of constitutional adjudication, it is difficult to discern any justification for a judge construing the provision to mean anything other than what it was originally understood to mean, other than what it was ratified to establish. n63 After all, if the provision is not deemed authoritative, why is the judge enforcing, and therefore interpreting, it? What Steven Smith has asked of statutes we can ask of constitutional provisions:
[*691] If the statute is understood not as the expression of a collective decision by the established political authority but rather as a kind of thing-in-itself, a free-floating text, then why is its right to command any greater than that of, say, the political treatise or the science fiction novel? n64
Skeptical that there is any good answer to the question Smith has posed, Richard Kay has argued, in a series of essays, that nonoriginalist textualism, unlike originalism and even simple nonoriginalism, is divided against itself: "There may be plausible theories of government and judicial review which demote the authority of both intention and text, but it is hard to see what the political rationale would be for a theory that elevates a text for reasons unrelated to the people and circumstances which created it." n65 "[T]o the extent we would bind ourselves . . . to rules inferred from mere marks and letters on paper without reference to the will of the human beings who selected those marks and letters, we enter a regime very foreign to our ordinary assumptions about the nature of the law." n66 To deem authoritative the words of a constitutional provision "independently of the intentional act which created them," suggests Kay, "is to disregard exactly that which makes the text demand our attention in the first place. That the words will bear some different meaning is purely happenstance. Without their political history, the words of the Constitution have no more claim on us than those of any other text." n67 Smith has made much the same point: "[I]t is hard to think of any recommendation for a regime of law created by the 'interpretation' of disembodied words that have been methodically severed from the acts of mind that produced them." n68
It misses the point to observe of constitutional provisions what Cass Sunstein has recently observed of federal statutes: "The words were [*692] enacted; the original understanding was not. . . . Words have passed through the constitutionally specified mechanisms for enactment of laws; intentions have not, and they are therefore not binding." n69 Yes, the words were enacted. But, as I pointed out at the beginning of this Article, in the absence of a widely shared understanding of the words -- especially, in the presence of competing understandings of the words -- there arises the question of whose understanding of the words, the meaning of the words to whom, is authoritative. I have presented an argument for answering that the original understanding/meaning is authoritative. Those who do not like that answer must present an argument for
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answering that some nonoriginal understanding/meaning is authoritative. n70 Saying that "the words were enacted, the original understanding was not" does not constitute such an argument; it does not tell us why we should privilege some present meaning (for example) over the original meaning. Sunstein's comment that "[i]n the end, Congress enacts laws, not its own views about what those laws mean" n71 is best understood as a point against the unsophisticated version of originalism, but not against the sophisticated version at issue in this Article. n72 Adapted to the context of constitutional (not statutory) adjudication, the point is that, in general, the ratifiers (on behalf of their polity) establish principles, not their own views about how those principles should be applied.
Note that the argument for originalism presented here is not itself originalist. An originalist argument for the originalist conception of constitutional interpretation, by presupposing the authority of originalism, would be question-begging. n73 That is why arguments to [*693] the effect that the founders' approach to legal interpretation was not originalist n74 have a limited relevance: Such an argument counters only the question-begging argument for originalism. n75 Note, too, that this argument for the originalist conception, unlike the one Bork sometimes seems to give, does not presuppose that the originalist approach necessarily constrains judges to a significant extent. n76 (Nor does the argument presuppose that a nonoriginalist textualist approach fails to constrain judges. n77 ) Bork and many other enthusiasts of originalism [*694] (e.g., former Attorney General Edwin Meese n78 ) sometimes seem not to understand that the extent to which the originalist approach to constitutional interpretation constrains a judge depends on (what the judge believes to be) the original meaning of the provision: The more specific the original meaning, the greater the constraint; the more general the meaning, the lesser the constraint and the greater the latitude for what is sometimes called judicial "discretion" in "applying" the provision to the case at hand.
If originalism has no serious competitors, then (in response to the question with which the preceding Part of this Article concluded) the originalist conception of constitutional interpretation -- which can, as a practical matter, inform the practice of judicial review -- should, as a political-moral matter, inform it. If originalism is the only legitimate approach to constitutional interpretation, we should all be originalists. n79
[*695] III
But if we should all be originalists, we must all be nonoriginalists, too -- albeit "nonoriginalists" in a sense of the word different from the sense in which I used the word in the preceding section. Our approach to originalism and nonoriginalism -- nonoriginalism in that different sense, which I develop in this Part -- must be, not either/or, but both/and.
To develop the point I must, first, emphasize that the meaning of a norm may be complex rather than simple (as I illustrated in Part I); second, I must distinguish between the relatively specific aspect (or aspects) of the (complex) meaning of a norm and the relatively general aspect (or aspects). The distinction may be explained in terms
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of a norm that prohibits, though, of course, a norm may permit, or even require. The (relatively) specific aspect of the meaning of a norm is the prohibition of a (relatively) specific practice (state of affairs, etc.), like refusing to hire a person because he is black. The general aspect is the prohibition of a general practice, like discriminating on the basis of race. Although the meaning of a particular norm may have only a specific aspect or, less likely, only a general aspect, the meanings of many norms have both a specific aspect (or aspects) and a general aspect, with the latter being a generalization of the former. n80
Originalism holds that a judge should enforce a constitutional provision according to its original meaning. The original meaning of a [*696] constitutional provision -- which is, after all, a norm -- may very well be complex: It may have both relatively specific aspects and a relatively general aspect. To enforce a constitutional norm according to its original meaning is, therefore, to enforce the norm according to both the specific and the general aspects of that meaning. Consider, for example, the equal protection clause. Assume: (1) a specific aspect of the original meaning of the clause is that no state may discriminate on the basis of race; and, (2) the most general aspect of the original meaning -- the broadest articulation of the most general aspect warranted by the relevant materials -- is that no state may discriminate on the basis of "irrational prejudice." n81 Assume also, however, that it is not a specific aspect of the original meaning of the equal protection clause that no state may discriminate on the basis of sex. (The assumption may be accurate because, at the time fourteenth amendment was proposed and ratified, the ratifiers did not think -- not many of them, at any rate -- about sex-based discrimination; or, if they did think about it, they did not believe that such discrimination was problematic.) Given those assumptions, originalism authorizes a judge to enforce, in the name of the equal protection clause, not only the (relatively) specific principle that no state may discriminate on the basis of race, but also the (relatively) general principle that no state may discriminate on the basis of irrational prejudice. n82
Under the premises of (sophisticated) originalism, and given the preceding assumptions, a judge is justified in specifying that general principle to prohibit discrimination based on sex if, in the judge's view, such discrimination constitutes a category of discrimination based on irrational prejudice n83 (or in specifying it to prohibit particular [*697] instances of sex-based discrimination if, in the judge's view, the particular instances constitute irrational discrimination). By specifying the principle to prohibit sex-based discrimination, the judge adds to the meaning of the principle, giving the principle (further) meaning that theretofore it did not have. After the specification the principle has, in that sense, a fuller meaning.
Because (given the assumptions) the principle that no state may discriminate on the basis of irrational prejudice is, for an originalist, an aspect of the authoritative meaning of the equal protection clause, we can say that after the specification of the principle the clause itself has a fuller meaning. In that sense and to that extent, the present meaning -- the present authoritative meaning -- of the equal protection clause is different from the original meaning: It was not (we assumed) an aspect of the original meaning that no
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state may discriminate on the basis of sex; but, in the scenario at hand, it is an aspect of the present (authoritative) meaning that no state may discriminate on the basis of sex. Moreover, the present meaning of the clause is different from the original meaning not in spite of the originalist conception of constitutional interpretation, but because of it.
[*698] So, although we should all be originalists, we -- Bork included -- must all be nonoriginalists, too: Over time an originalist approach to the interpretation of a constitutional provision yields a provision whose present meaning is different from -- is fuller than -- its original meaning, a provision whose present meaning goes beyond the original meaning. n84 (Beyond the original meaning, but not, it bears emphasis, against it: As I argue in the next Part of this Article, if the ratifiers believed that a particular practice violated a constitutional provision that they were ratifying, and if they likely would not have ratified the provision in precisely the form they did had they thought otherwise, it is, in that sense, a specific aspect of the original meaning of the provision that government may not engage in that practice. It follows, under the premises of originalism, that a court may not rule that the practice does not violate the provision even if, in the court's view, the practice does not violate the general aspect of the original meaning of the provision considered independently of other, more specific aspects.) The originalist approach, therefore, not only does not preclude the development (but not contraction) of the original meaning of a constitutional provision, it authorizes that development. In an important sense, then, originalism entails nonoriginalism: The originalist approach to constitutional interpretation necessarily eventuates in nonoriginal meanings. n85
[*699] An aspect of the present meaning of a constitutional provision -- that is, an aspect that is not also an aspect of the original meaning -- does not have the same hierarchical status in our legal system as that of an aspect of the original meaning. A court can overrule an earlier decision and, in that sense, disestablish an aspect of the present meaning. Consistently with originalism, however, a court may not disestablish an aspect of the original meaning. But some aspects of the present meaning of constitutional provisions are, or become, so well-established that they are, as a practical matter, no less entrenched than aspects of the original meaning. Entrenched aspects of the present meaning (along with aspects of the original meaning) of a constitutional provision inevitably "condition" or "qualify" future interpretations -- specifications -- of the provision. "[Hermeneutics insists that] the reception of a text in a tradition is also constitutive of its meaning and, therefore, of its interpretation. The claim is that this history of the text's effects . . . itself conditions, or qualifies, the interpretation and so must be taken into account in the interpretation." n86
[*700] Robert Bork, our exemplary originalist, seems to understand -- or seems sometimes, in certain moods, to understand -- that the development of the meaning of a constitutional provision is required, not precluded, by an originalist approach. For example, he writes:
When there is a known [constitutional] principle to be explicated the evolution of doctrine is inevitable. Judges given stewardship of a constitutional provision . . . whose core is known but whose outer reach and contours are ill-defined, face the never-ending
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task of discerning the meaning of the provision from one case to the next. There would be little need for judges . . . if the boundaries of every constitutional provision were self-evident. . . . It is the task of the judge in this generation to discern how the [ratifiers'] values . . . apply to the world we know. . . .
. . . [Judges may] refine and evolve doctrine . . ., so long as one is faithful to the basic meaning of the [constitutional provision]. . . . To say that such adjustments must be left to the legislature is . . . gradually to render constitutional guarantees meaningless. n87
Near the end of his book, Bork emphasizes that "[t]he provisions of the Constitution state profound but simple and general ideas. The law laid down in those provisions gradually gains body, substance, doctrines, and distinctions as judges, equipped at first with only those ideas, are forced to confront new situations and changing circumstances." n88 Commenting on the Supreme Court's decision in Brown v. Board of Education n89 outlawing racially segregated public schooling, Bork says: "[I]t became evident over time that the racial separation the ratifiers of the fourteenth amendment assumed" -- the racial separation, i.e., that they took for granted -- "was completely inconsistent with the equal protection of the laws they mandated." n90
Bork's insistence that the cruel and unusual punishments clause of the eighth amendment n91 simply cannot be interpreted to prohibit [*701] imposition of the death penalty because the ratifiers of the Constitution and the Bill of Rights presupposed the existence of the death penalty, and, elsewhere in the Constitution and the Bill of Rights, regulated imposition of the death penalty, n92 is difficult to square with Bork's paean to evolving constitutional doctrine. The ratifiers' expectation that reliance on the death penalty would persist into the future, and their decision, given that expectation, to regulate imposition of the death penalty, do not constitute a decision to authorize reliance on the death penalty, to constitutionalize the death penalty -- in that sense, they do not constitute a decision to exempt the death penalty from possible prohibition by the eighth amendment. Of course, that the ratifiers expected a practice, like the death penalty or segregated public schooling, to persist into the future is evidence that they did not believe that they were prohibiting the practice. But that they did not believe that they were prohibiting a practice does not mean that the correct application of a principle they established does not prohibit the practice. Bork understands that he cannot rule out, on the basis of the originalist conception of constitutional interpretation, the possibility that racially segregated public schooling does indeed violate the equal protection clause -- the possibility that such schooling is really a denial of equal protection -- notwithstanding that the ratifiers of the clause did not so think. Bork does not understand, however, that, absent evidence that the ratifiers meant to constitutionalize the death penalty -- Bork points to no such evidence, and I am aware of none -- he cannot rule out, on the basis of the originalist conception, the possibility that the death penalty does indeed violate the cruel or unusual punishments clause -- the possibility, that is, that the death penalty is truly a cruel or unusual punishment -- notwithstanding that the ratifiers of the clause did not so believe. n93
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[*702] IV
In the preceding Part, I argued that originalism entails nonoriginalism, that although we should all be originalists, we must all be nonoriginalists, too: The originalist approach to constitutional interpretation necessarily eventuates in nonoriginal meanings; over time an originalist approach to the interpretation of a constitutional provision yields a provision whose present meaning is different from -- in particular, is fuller than -- its original meaning, whose present meaning goes beyond the original meaning. I then emphasized, however, that the originalist approach need not and should not yield a provision whose present meaning goes against the original meaning. I said that if the ratifiers believed that a particular practice violated a constitutional provision they were ratifying, and they likely would not have ratified the provision in precisely the form they did had they thought otherwise, [*703] it is, in that sense, a specific aspect of the original meaning of the provision that government may not engage in that practice. Therefore, under the premises of originalism, a court may not rule that the practice does not violate the provision, even if, in the court's view, the practice does not violate the general aspect of the original meaning of the provision considered independently of other, more specific aspects. I can imagine one suggesting that my position in that regard goes too far -- and I can imagine one suggesting that it does not go far enough.
I want to respond first to the suggestion that my "beyond the original meaning but not against it" position does not go far enough: that if the ratifiers believed that a particular practice did not violate a constitutional provision they were ratifying, and they likely would not have ratified the provision in precisely the form they did had they thought otherwise, it is, in that sense, a specific aspect of the original meaning of the provision that government may engage in a particular practice. Therefore, under the premises of originalism, a court may not rule that the practice violates the provision, even if, in the court's view, the practice does violate the general aspect of the original meaning of the provision considered independently of other, more specific aspects. For example, if the ratifiers of the fourteenth amendment believed that discrimination based on sex did not violate the equal protection clause and, had they thought otherwise, very probably they would not have ratified the clause, or ratified it in precisely the form they did, then sex-based discrimination is most sensibly treated as an exception to whatever general principle the clause, as originally understood, is interpreted to represent. If the ratifiers believed that sex-based discrimination did not violate the equal protection clause, and likely they would not have ratified the clause in the form they did had they thought otherwise, then, in that sense, the ratifiers meant to exempt sex-based discrimination from possible prohibition by the equal protection clause, in which case a specific aspect of the original meaning of the clause is that states may discriminate on the basis of sex.
The problem is not that my position does not go far enough. The problem, rather, is that the different position I just sketched goes too far. Assume that the ratifiers believed that a particular practice P did not violate the constitutional provision they were ratifying (and likely they would not have ratified the provision in the form they did had [*704] they thought otherwise). Assume, too, that for one reason or another the
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ratifiers never thought about the relation between a different practice Q and the provision they were ratifying, so that we cannot say that the ratifiers believed that Q did not violate the provision. Assume finally, however, that if the ratifiers had thought about the relation between Q and the provision, almost certainly they would have believed that Q did not violate the provision. To try to restrict the position I sketched in the preceding paragraph to circumstances like those in which the ratifiers believed that P did not violate the provision they were ratifying -- in particular, to try to restrict the position from circumstances like those in which the ratifiers would have believed that Q did not violate the provision -- puts too much weight on the contingency that the ratifiers happened to think about the relation between one practice (like P) and the provision they were ratifying, but happened not to think about the relation between another practice (like Q) and the provision. If the position at issue is to be accepted at all, it must extend to circumstances in which, if the ratifiers had thought about the relation between a particular practice and the provision they were ratifying, they very likely would have believed that the practice did not violate the provision. After all, perhaps the only or main reason the ratifiers thought about the relation between one practice (like P) and the provision they were ratifying, but not about another practice (like Q) and the provision, was that whereas some persons at the time thought that the provision might or should be interpreted to prohibit the former practice (a possibility a critical mass of the ratifiers wanted to forestall), few, if any, persons at the time would have dreamed that the latter practice implicated, much less violated, the provision. According to the modified position, then, originalism would permit a court to invalidate, in the name of a constitutional provision, a practice the ratifiers did not understand the provision to prohibit only if the court doubts that the ratifiers understood, or likely would have understood, the provision not to prohibit the practice. A court would not be authorized to invalidate a practice that, in the court's view, the ratifiers understood or likely would have understood the provision not to prohibit.
Such an originalism, however, is at odds with the fundamental premise of sophisticated originalism -- a principle on which Bork and many other originalists insist -- that, if a practice violates a principle established by the ratifiers, the practice is unconstitutional even if the [*705] ratifiers would or might have resolved the issue differently: For example, whether racially segregated public schooling violates the principle represented by the equal protection clause as originally understood is a question for the court charged with enforcing the principle; it is not a question to be referred to the past. n94
Gregory Bassham has recently suggested why originalists like Bork and Meese eventually gravitated toward sophisticated originalism -- toward what Bassham calls "moderate intentionalism" originalism rather than "strict intentionalism" originalism. According to Bassham, the former
recognizes the importance of striking a balance between the [values] of predictability and stability on the one hand, and [those] of flexibility and adaptability on the other. . . . Moderate intentionalism enjoys the significant advantage of being able to respond, as strict intentionalism is not, both to originalism's traditional concern with the
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values of certainty, stability, and judicial restraint, and to the perennial complaint of originalism's critics that the theory is hopelessly at odds with the need to treat the Constitution as a living, flexible document. n95
Even more important, argues Bassham, is moderate intentionalism's
capacity to recognize that constitutional provisions, in principle, may signify aspirations and values that transcend the framers' temporally-bounded conceptions of the scope of those provisions. . . . Moderate intentionalism thus seem[s] an attractive half-way house between two unacceptable extremes: a jurisprudence that constitutionalized the repellent prejudices of former generations on the one hand, and a jurisprudence of open-ended judicial policymaking . . . on the other. n96
Is it irrelevant, then, that the ratifiers believed that a particular practice did not violate a constitutional provision they were ratifying? No: The fact that the ratifiers believed (or even that they would have believed) that a particular practice did not violate a constitutional provision they were ratifying may suggest -- may be some evidence -- that either (1) the principle we would otherwise (but for that fact) be inclined to conclude the ratifiers established is not the principle they in fact established; or (2) the specification (application) of the principle [*706] (the principle the ratifiers established) we would otherwise be inclined to make is a problematic, perhaps even a mistaken, specification. n97
I now want to address the suggestion that my "beyond the original meaning but not against it" position goes too far. As I have just explained, the ratifiers' belief that a particular practice did not violate a constitutional provision they were ratifying is relevant to whether the practice violates the provision. Why, then, should not the ratifiers' belief that a particular practice did violate a constitutional provision they were ratifying be merely relevant to, but not conclusive of, whether the practice violates the provision (unless, of course, the provision on its face prohibits the practice)? Perhaps the latter fact, like the former, should be merely relevant, but not conclusive. I doubt, in any event, that in the real world of constitutional adjudication the cash value of the difference between the two positions (relevant v. conclusive) is great: It seems most unlikely that even under the "relevant but not conclusive" position, the Supreme Court would sustain (or often sustain) a practice that a critical mass of state ratifying conventions understood to be prohibited by a provision they were ratifying. n98 Still, we should not too quickly dismiss the position that the ratifiers' judgment should be conclusive as to the prohibition of a particular practice by a constitutional provision they were ratifying -- that their judgment in that regard should be deemed to constitute the uncontested core meaning of whatever general principle the ratifiers are understood to have established in ratifying the provision. To deem that judgment merely relevant, but not conclusive, seems to marginalize that which was central to the ratifiers; indeed, it seems to discount, if not ignore, the extent to which a desire to prohibit the [*707] practice may have motivated the ratifiers to add the provision to the Constitution in the first place.
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[O]ur understanding of the framers' intentions is necessarily distorted if we focus solely upon their larger purposes, ignoring the particular judgments they made in expressing those purposes. Intentions do not exist in the abstract; they are forged in response to particular circumstances and in the collision of multiple purposes which impose bounds upon one another. . . . By wrenching the framers' "larger purposes" from the particular judgments that revealed them, we incur a loss of perspective, a perspective that might better enable us to see that the particular judgments they made were not imperfect expressions of a larger purpose but a particular accommodation of competing purposes. n99
It seems more consistent with the premises of originalism n100 to treat the ratifiers' judgment that a particular practice violated a provision they were ratifying as an aspect (a relatively specific aspect) of the authoritative original meaning of the provision. n101
[*708] I conclude this Part by making explicit something that has been implicit in my discussion thus far: There are four basic versions of originalism. n102 Let C stand for a particular constitutional provision, and P for a particular political practice (law, etc.). Assuming C and P, three situations are possible:
Situation One. The ratifiers understood (or, had they thought about the relation between C and P, likely would have understood) C to prohibit P; they wanted C to prohibit P, and they would not have ratified C in precisely the form they did had they understood C not to, or possibly not to, prohibit P.
Situation Two. The ratifiers did not understand (or would not have understood) C to prohibit P, and they did not know (or would not have known) whether C prohibited P. In that sense, they left (or would have left) the question for those charged with enforcing C, especially the courts.
Situation Three. As in situation two, the ratifiers did not understand (or would not have understood) C to prohibit P; in this situation, however, the ratifiers understood (or would have understood) C not to prohibit P.
Here, then, are the four basic versions of originalism:
(1) The strictest version of originalism -- "subjective intentions" originalism -- according to which a court should invalidate P only if [*709] situation one; in particular, a court should not invalidate P if either situation two or situation three. n103
(2) A less strict version, according to which a court should invalidate P only if either situation one, or situation two and the court concludes that P violates the principle the ratifiers understood themselves to be establishing in ratifying C; in particular, a court should not invalidate P if situation three. (Put another way, if situation three a court should not construe a principle prohibiting P as the principle the ratifiers understood themselves to be establishing in ratifying C.)
(3) A version less strict still, according to which a court should invalidate P if either situation one, or situation two or three and the court concludes that P violates the principle the ratifiers understood themselves to be establishing in ratifying C.
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(4) The least strict version of originalism, which is like the preceding (third) version, except that according to this version, even if situation one a court should not invalidate P if the court concludes that P does not violate the principle the ratifiers understood themselves to be establishing in ratifying C.
It is difficult to identify originalists today who defend the first version of originalism, or even the second version. n104 Robert Bork does not defend the second version, much less the first. Indeed, as I have pointed out in this Part, the second version is inconsistent with Bork's rendition of originalism in The Tempting of America. In this Part, I have contended against the second version. As between the third and fourth versions, I have suggested that the third may make the most sense. But I have also suggested that the cash value of the difference between the third and fourth versions probably is not great. Bork's elaboration and defense of originalism in The Tempting of America seems underdeterminate with respect to the choice between the third and fourth versions, but it would be surprising if Bork opted for the fourth, which, after all, is the least strict version of originalism, the least confining of judicial "discretion."
[*710] V
Because originalists must be nonoriginalists -- because, as I said at the beginning of Part III of this Article, our approach to originalism and nonoriginalism (nonoriginalism in the sense developed in Part III) must be, not either/or, but both/and -- I am inclined to agree with Lawrence Solum's suggestion that the putative distinction, in the sense of opposition, between originalism and nonoriginalism has collapsed. n105 In a sense, originalism -- sophisticated originalism -- has prevailed in constitutional theory. "As originalism has been modified and defined in reaction to nonoriginalist critiques," writes Solum, "the originalist's position has become more and more plausible as a theory of constitutional interpretation. . . . [Sophisticated originalism] provide[s] an accurate description of the phenomenology of constitutional practice." n106
In another sense, however, originalism has not prevailed: "[T]he originalists have won a Pyrrhic victory. As originalism has been clarified in response to its critics, it has gradually become more and more evident that it has no force as a critique of the kind of constitutional interpretation practiced by the Warren Court." n107 Originalist constitutional theory has been, for many persons, the political-theoretical ground from which to mount a fundamental assault on the legitimacy of significant parts of the modern Supreme Court's constitutional work product. In the work from which this Article is drawn, n108 I argue, in the spirit of Solum's "Pyrrhic victory" comment, that the modern constitutional decisions found most objectionable by Robert Bork and many others are, in the main, consistent with an originalist approach to constitutional adjudication. In the remainder of this Article, I explain why originalism is a much less promising ground from which to mount the assault than many of the Court's severest critics, like Robert Bork and Edwin Meese, have often realized -- or at least acknowledged.
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[*711] The explanation is simple: It is, in a word, indeterminacy -- the indeterminacy of originalism. Both the historical inquiry and the interpretive inquiry constitutive of the originalist approach to constitutional adjudication are often indeterminate. Originalism runs out before many of the most important constitutional conflicts that engage the judiciary are resolved.
Consider first the historical inquiry: the inquiry into original meaning. Recall the distinction between the (relatively) specific aspects and the (relatively) general aspect of the (complex) original meaning of a constitutional provision. n109 For many constitutional provisions -- in particular, many provisions concerning human rights -- even if historical inquiry sometimes yields a confident conclusion as to one or more of the specific aspects of the original meaning, it will often not yield just a single conclusion as to the precise breadth of the most general aspect of the original meaning. For example, even if historical inquiry discloses that the equal protection clause was originally understood, inter alia, to forbid state governments to deny to black persons the rights "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property . . . enjoyed by white citizens," n110 the relevant historical materials do not support just a single conclusion as to the most general aspect of the original meaning. They support, rather, more than one such conclusion. n111
Which conclusion among the historically plausible conclusions a judge finds most plausible may well be influenced by her political-moral values: One of the historically plausible conclusions may be more congenial to her values than any of the other historically plausible conclusions. Or which conclusion she finds most plausible may well be influenced by her conception of proper judicial role: One of the historically plausible conclusions may allow her more room to practice her conception of proper judicial role, or it may allow less room for others to practice a conception of judicial role she rejects. Or, apart from the probability of such influence, a judge may have an implicit rule (or rules) of thumb for dealing with inconclusive inquiries into original meaning. For example, she may have a rule that [*712] favors, among the historically plausible readings, the reading that in her view makes the provision sounder (or soundest) as a matter of political morality.
As between any two logically, linguistically, and historically permissible interpretations, if one of them conforms to what the instant judge can accept as a correct or reasonable view of constitutional policy and value, and the other does not, the judge hardly can refrain from preferring the conforming interpretation; that is merely interpretive charity. n112
She may also have a rule that favors, among the historically plausible readings, the broader (or broadest) reading of the (most general aspect of) original meaning of a constitutional provision -- and thereby favors, too, a relatively large judicial role. Or she may have a rule that favors the narrower (or narrowest) reading -- and thereby favors a relatively small judicial role.
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Such rules of thumb are obviously grounded in a judge's political morality and/or in her conception of politics, especially in that part of her conception of politics that concerns proper judicial role. n113 Nothing in the originalist approach to constitutional interpretation or in the justification, the premises, of that approach commits the approach to a particular political morality (beyond the often indeterminate political morality embodied in the Constitution as originally understood) or to a particular conception of proper judicial role (beyond the commitment to the originalist approach to constitutional interpretation); nor is originalism committed, therefore, to a particular rule of [*713] thumb for resolving inconclusive inquiries into original meaning. n114
The indisputable fact of the matter is that the originalist approach does not always,or even often, pick out as historically plausible only a single conclusion as to the (most general aspect of the) original meaning. There is often a range of plausible conclusions.
Occasionally, an originalist judge who happens to be committed to a relatively narrow conception of proper judicial role will complain about the tendency of some judges to "overgeneralize" the original meaning of constitutional provisions. (Former originalist judge Robert Bork, for example, writes that although not all of those he calls "the theorists of liberal constitutional revisionism" -- Bork includes me in that group n115
-- "would agree that they have rejected the original understanding, . . . it can be shown that they have generalized that understanding so greatly, stated it at such a high level of abstraction, that virtually no one who voted to ratify the document would recognize the principles of the theorists as his own." n116 ) But it would make just as much sense for an originalist judge committed to a relatively broad conception of proper judicial role to complain about the tendency of some judges to "undergeneralize." Indeed, the complaint that some judges tend to undergeneralize seems the more plausible one with respect to constitutional provisions, like the equal protection clause, the language of which is relatively general. (The equal protection clause does not by its terms -- at least, as such terms are used today -- prohibit only discrimination based on race.) After all, the generality of the language of a constitutional provision is some evidence that the original meaning of the provision is, in one of its aspects at least, similarly general.
[*714] Interpreters who emphasize extrinsic evidence of the founders' intent tend to ignore the generality of the text and to substitute much narrower conceptions of intent. The founders focused on the specific problems most salient to their lives, but they constitutionalized general principles that seem designed to cover whole classes of similar problems. What they left a record of having specifically and consciously intended is often a small subset of the text they proposed and ratified. Interpretation limited to specific and provable intentions thus tends to be fatally inconsistent with the constitutional text. n117
Of course, it is always possible that -- and sometimes merits inquiry whether -- language that appears general to us in the present did not appear general to them in the past. n118 Nonetheless, "[c]ertainly, when most readers agree that a particular clause or phrase means one thing, the burden of persuasion ought to be on the advocate of some other meaning. Such a presumption is fully consistent with [the originalist approach to constitutional interpretation] and a convenient rule of administration." n119
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No matter what an originalist judge's conception of proper judicial role, her commitment to the originalist approach is a commitment to retrieve the original meaning of constitutional provisions as accurately as possible and, therefore, neither to over- nor undergeneralize [*715] original meaning. The problem, however, is that often there will be available a range of historically plausible readings -- some broader, some narrower -- of the (most general aspect of the) original meaning. n120 (I have just been emphasizing that which of the available readings a judge is inclined to see as the most plausible, which she is inclined to find most attractive, will almost certainly, if not inevitably, depend on factors like her conception of judicial role.) In that sense, the historical inquiry authorized by originalism can be, and often is, indeterminate. Originalist judges can, and often will, disagree among themselves as to the original meaning of a constitutional provision.
Consider now the indeterminacy of the interpretive inquiry constitutive of the originalist approach. Even judges who agree among themselves as to the original meaning of a constitutional provision can, and often will, disagree among themselves about how to apply that meaning to the case at hand. They can disagree, that is, about how to specify, n121 in the context of the conflict at hand, the relevant constitutional principle -- the principle that represents the relevant aspect of the original meaning. As Bork himself emphasizes, "two judges equally devoted to the original [meaning] may disagree about the reach or application of the principle at stake and so arrive at different results." n122
The likelihood of such disagreement increases, of course, to the extent the relevant principle -- the relevant aspect of the original meaning -- is (relatively) general rather than specific. Recall Bork's [*716] acknowledgement that although judges must not (in Bork's view) "make or apply any policy not fairly to be found in the Constitution . . . [,] [i]t is of course true that judges to some extent must make law every time they decide a case." Bork then adds: "[B]ut it is minor, interstitial lawmaking." n123 Well, how "minor" the inevitable lawmaking is depends on whether the legal principle being "applied" is relatively specific or relatively general. The more specific the principle, the more minor the lawmaking, but the more general the principle, the more major the lawmaking. Bork insists that "[t]he principles of the actual Constitution make the judge's major moral choices for him." n124 In a sense that is right. But in another sense "the principles of the actual Constitution," if and to the extent relatively general, require the judge to make major moral choices -- choices underdetermined by the principles themselves, given their relative generality.
As with the indeterminacy of the historical inquiry into original meaning, a judge may have a rule of thumb for dealing with the indeterminacy of constitutional principles; for example, a judge may have a rule that invariably favors a specification (application) of constitutional principles congenial to whatever governmental action is being challenged on the basis of the principles -- and thereby favors, too, a relatively passive judicial role rather than a relatively active one. n125 (Or a judge may have different rules of thumb for different constitutional provisions, treading more deferentially with respect to, for example, federal action alleged to violate a
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constitutional provision delegating a power to the federal government, n126 but less deferentially with respect to governmental action alleged to violate a provision protecting an individual right.) But, as before, an originalist approach to [*717] constitutional interpretation is not committed to any rule of thumb for dealing with the indeterminacy of constitutional principles. An originalist judge committed to a particular conception of politics and judicial role may have such a rule, but a different originalist judge committed to a different conception may have a different rule. n127
Just as the historical inquiry constitutive of the originalist approach can be, and often is, indeterminate, the interpretive inquiry ("What does the principle mean in this case, for this conflict?") can be, and often is, indeterminate. Originalist judges can, and often will, disagree among themselves as to the proper specification of a constitutional principle. n128 Those basic indeterminacies of originalism -- of the historical inquiry, then of the interpretive inquiry -- go a long way toward explaining why originalism is a much less promising ground from which to mount an assault on modern constitutional law than many of the Supreme Court's severest critics have often realized (or acknowledged). The indeterminacy of the interpretive inquiry constitutive of the originalist approach is even greater -- so, originalism is an even less promising ground of critique -- if an aspect of the original meaning of the ninth amendment is that there are unenumerated constitutional rights against the federal government; n129 or, if the original meaning of the privileges or immunities clause of the fourteenth amendment is to the effect that there are particular, albeit unenumerated, constitutional rights (" privileges or immunities") against state governments; n130 or, especially, if both, and if there is no more reason [*718] for a judge to forswear enforcing such rights than for her to forswear enforcing enumerated constitutional rights.
If a credible assault is to be mounted, it will have to be on the basis of something other than originalism. n131 That "something" is almost certainly a conception of politics, including -- indeed, especially -- a conception of proper judicial role as part of a conception of politics. The real differences animating contemporary constitutional-theoretical argument seem to concern not originalism versus nonoriginalism but the matter of politics and judicial role. n132 (Of course, there are differences, too, about the correct reading of the original meaning of various constitutional provisions and about the proper specification of the constitutional principles that represent the original meaning. But, as I have just suggested, those differences are often rooted in competing conceptions of proper judicial role.) They are differences best understood, in my view, as arising within the context of originalism: They should not be understood as differences between (sophisticated) originalists on the one side and nonoriginalists (of various stripes) on the other.
Though we (constitutional theorists, judges, lawyers, etc.) have different conceptions of American politics and of the proper place of the courts in American politics, we are all originalists now -- or should be. But, as I have explained, originalists must be nonoriginalists. But both/and, not either/or. n133 The originalism/nonoriginalism debate is now largely spent.
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[*719] The serious questions for constitutional theory do not concern -- not any longer -- the legitimacy of this or that conception of constitutional interpretation. They concern, rather, politics and judicial role. Specifically, they concern: descriptively, what American politics is like with respect to deliberation about constitutional issues; prescriptively, what American politics should be like; and, strategically, how to bridge the distance between the description and the prescription. The questions concern, in particular, the role the judiciary plays, especially the role it should play, in constitutional deliberation -- and the role the judiciary plays, and should play, in closing the distance between the reality of American politics and the ideal.
As I said at the beginning of this Article, it is evidence of the high quality of Democracy and Distrust that over a decade after its publication the book remains a vital text for anyone who would address such questions about politics and judicial role. Ely's teacher, Alexander Bickel, published The Least Dangerous Branch in 1962, while Ely was a student at the Yale Law School. Democracy and Distrust, which this symposium justly honors, deserves a place alongside The Least Dangerous Branch as a work in the very first rank of constitutional theory.
Legal Topics:
For related research and practice materials, see the following legal topics:Constitutional LawCongressional Duties & PowersCensusComposition of the U.S. CongressConstitutional LawBill of RightsState ApplicationConstitutional LawEqual ProtectionGeneral Overview
FOOTNOTES:
n1 J. Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
n2 See Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703 (1975).
n3 Following Grey and Ely, I used the distinction in my book. See M. Perry, The Constitution, the Courts, and Human Rights (1982).
n4 Grey, The Constitution as Scripture, 37 Stan. L. Rev. 1, 1 (1984). See also Moore, Do We Have an Unwritten Constitution?, 63 S. Cal. L. Rev. 107, 110-14 (1989) (criticizing the interpretive/noninterpretive distinction).
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n5 See Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. Rev. 204, 204 n.1 (1980).
n6 There are several originalist approaches, as I later explain. See infra notes 102-04 and accompanying text.
n7 See J. Ely, supra note 1, at 1-2.
n8 Id. at 3-4; see id. at 1-9 ("The Allure of Interpretivism").
n9 See id. at 1 ("norms that are stated or clearly implicit in the written Constitution").
n10 " The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX.
n11 The fourteenth amendment provides, in relevant part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . ." U.S. Const. amend. XIV, § 1.
n12 J. Ely, supra note 1, at 41; see id. at 11-41 ("The Impossibility of a Clause-Bound Interpretivism").
n13 See id. at 34-38.
n14 See, e.g., Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U.L. Rev. 226, 269-73 (1988); McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215 (1990).
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n15 For a rich collection of writings on the ninth amendment, see The Rights Retained by the People: The History and Meaning of the Ninth Amendment (R. Barnett ed. 1989); Symposium on Interpreting the Ninth Amendment, 64 Chi.-Kent L. Rev. 37 (1988); Commentary on the Symposium on Interpreting the Ninth Amendment, 64 Chi.-Kent L. Rev. 981 (1988).
n16 See J. Ely, supra note 1, at 22-30.
n17 See, e.g., Kay, supra note 14, at 266-69; see W. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).
n18 See M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
n19 See J. Ely, supra note 1, at 43-72 ("Discovering Fundamental Values").
n20 Id. at 41.
n21 In the work from which this Article is drawn, I elaborate an alternative conception of the normative reasoning available to judges. See M. Perry, The Constitution in the Courts (1991) (unpublished manuscript on file with the author)
n22 J. Ely, supra note 1, at 87.
n23 See id. at 73-179.
n24 Id. at 181.
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n25 Id. at 182. I put aside here the question of whether Ely administers the substantive/participational distinction in a plausible way -- in particular, whether he does not assimilate to participational review several issues more plausibly assimilated to substantive review (and thereby makes his theory seem more palatable to many than it otherwise would).
n26 I address such questions in the work from which this Article is drawn. See M. Perry, supra note 21.
n27 Remember the Bork Hearings. Remember, more recently, the Souter Hearings.
n28 U.S. Const. art. I, § 3.
n29 That there is a widely shared understanding of that or any other provision or text is, of course, a contingent fact, not a necessary one. The situation could be otherwise.
n30 U.S. Const. amend. XIV, § 1.
n31 R. Bork, The Tempting of America: The Political Seduction of the Law 144 (1990) (footnote omitted). Bork's The Tempting of America has been widely reviewed by constitutional scholars. Among the best of those reviews, in my opinion, are: Bradley, Probing Bork's Judicial Philosophy (Book Review), 52 Rev. Pol. 491 (1990); Dworkin, Bork's Jurisprudence (Book Review), 57 U. Chi. L. Rev. 657 (1990); Kay, The Bork Nomination and the Definition of "The Constitution" (Book Review), 84 Nw. U.L. Rev. 1190 (1990); Nagel, Meeting the Enemy (Book Review), 57 U. Chi. L. Rev. 633 (1990); Nichol, Bork's Dilemma (Book Review), 76 Va. L. Rev. 337 (1990); Posner, Bork and Beethoven (Book Review), 42 Stan. L. Rev. 1365 (1990). See also Confirmation Controversy: The Selection of a Supreme Court Justice, 84 Nw. U.L. Rev. 832 (1990) (symposium analyzing the process in light of recent controversy); Sandalow, The Supreme Court in Politics, 88 Mich. L. Rev. 1300, 1325 (1990) (reviewing E. Bronner, Battle for Justice: How the Bork Nomination Shook America (1989)).
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n32 I owe this terminology to my colleague Tom Merrill.
n33 Presumably what Bork means by the "public of that time" is not the whole public, but that particular public, namely, the enfranchised, on whose behalf the provision was ratified. Or does Bork mean a public larger than the enfranchised, on the theory that at least some of those who were not enfranchised were being virtually, though not actually, represented by the ratifiers? On "virtual representation," see J. Ely, supra note 1, at 82-87.
n34 The language is drawn from 42 U.S.C. § 1981 (1988), which derives from the Civil Rights Acts of 1866 and 1870.
n35 See supra note 11.
n36 The term "irrational prejudice" is lifted from the Court's opinion in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985). The debates surrounding the proposal and ratification of the fourteenth amendment presuppose that section one of the amendment would protect white persons, as well as the recently freed slaves and other persons of African descent, and that discrimination based on factors other than race (e.g., sex) would implicate -- though not necessarily, in the end, violate -- section one. See W. Nelson, supra note 17.
n37 I defend the conceptualization of "a relatively specific aspect of the original understanding" of a constitutional provision as an aspect of the original understanding of the provision and not merely as a (possibly mistaken) belief about a particular application or instantiation of the (or a) principle represented by the provision (i.e., by the provision as originally understood). See infra notes 80-85 and accompanying text.
n38 R. Bork, supra note 31, at 149-50.
n39 Dworkin, supra note 31, at 668 n.9.
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n40 See infra note 83.
n41 To say that the originalist approach is often difficult is not to say that it is impossible. Cf. M. Perry, Morality, Politics, and Law 126-27 (1988):
Why is the originalist's historical project so difficult (beyond the obvious fact that the available historical materials may be scant or inconclusive or both)? Ronald Dworkin's statement of the problem is useful:
History alone might be able to show that some particular concrete opinion, like the opinion that school segregation was not unconstitutional, was widely shared within the group of legislators and others mainly responsible for a constitutional amendment. But it can never determine precisely which general principle or value it would be right to attribute to them. This is so not because we might fail to gather enough evidence, but for the more fundamental reason that people's convictions do not divide themselves neatly into general principles and concrete applications. Rather they take the form of a more complex structure of layers of generality, so that people regard most of their convictions as applications of further principles or values more general still. That means that a judge will have a choice among more or less abstract descriptions of the principle that he regards the framers as having entrusted to his safekeeping, and the actual decisions he makes, in the exercise of that responsibility, will critically depend on which description he chooses.
So, how can an originalist judge, like Bork, choose "among more or less abstract descriptions of the principle" in a way that is faithful to the premises of his originalism? The answer, it seems to me, is this: The originalist, on the basis of available historical materials, must engage in a hypothetical conversation with . . . "the group of legislators and others mainly responsible for" the relevant constitutional provision . . . in an effort to discern which principle they most likely would have chosen, in the conversation, confronted by the various possibilities, that is, the various candidate principles, from relatively narrow/concrete to relatively broad/abstract, as being the one that best captured the purpose or point or meaning of what they did. That counterfactual project, though difficult, is hardly impossible.(footnote omitted) (quoting Dworkin, The Bork Nomination, N.Y. Rev. Books, Aug. 13, 1987, at 3, 6).
n42 Bork, Foreword to G. McDowell, The Constitution and Contemporary Constitutional Theory at xi (1985); cf. Sherry, Original Sin (Book Review), 84 Nw. U.L. Rev. 1215, 1222 (1990) ("originalism leaves . . . much room for . . . manipulation").
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n43 See R. Bork, supra note 31, at 218 (criticizing Leonard Levy's "highly oversimplified version of the philosophy of original understanding that bears little resemblance to the theory set out in this book. . . . No even moderately sophisticated originalist holds the view Levy refutes [in his Original Intent and the Framers' Constitution]." (footnote omitted)). The "intentionalist" approach to constitutional interpretation criticized by James Boyd White in his new book bears little resemblance to the sophisticated originalist approach at issue in this Article. See J. White, Justice as Translation 113-40 (1990) ("'Original Intention' in the Slave Cases"); cf. id. at 114 ("we shall be working out the consequences of at least one version of the view that the Constitution should be interpreted by reference to the intention of the framers") (emphasis added). The approach at issue here -- which can be, and in this Article is, elaborated entirely without reference to authorial intentions -- leaves room for precisely the kind of community-constitutive rhetoric rightly prized by White.
n44 See Richards, Originalism Without Foundations, 65 N.Y.U. L. Rev. 1373, 1380 (1990) (reviewing R. Bork, supra note 31).
[Raoul] Berger's originalism is a kind of appeal to what I call Founders' denotations. He holds that the meaning of a constitutional provision is to be understood in terms of the things in the world to which the relevant Founders would have applied the term at the time the constitutional provision was adopted authoritatively. A provision should be interpreted to include certain things only if those things would have been included within the meaning of the clause by the Founders. According to Berger, then, the equal protection clause properly cannot be interpreted to invalidate state-sponsored racial segregation because the relevant Founders (the Reconstruction Congress and ratifying state legislatures) would not have regarded such segregation as violative of equal protection.Id. (footnotes omitted).
n45 I develop the point in Part IV of this Article. See infra notes 94-104 and accompanying text.
n46 R. Bork, supra note 31, at 162-63; see also Bork, Original Intent and the Constitution, Humanities, Feb. 1986, at 22, 26. ("The objection that we can never know what the [ratifiers] would have done about specific modern situations is entirely beside the point. The originalist attempts to discern [and then enforce] the principles the [ratifiers] enacted, the values they sought to protect."); Bork, The Constitution, Original Intent, and Economic Rights, 23 San Diego L. Rev.
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823, 826-27 (1986) (arguing that his originalist theory does not require "judges . . . invariably [to] decide cases the way the [ratifiers] would if they were here today," but does require them to "confine themselves to the principles the [ratifiers] put into the Constitution"); cf. Dworkin, supra note 31, at 670 (commenting on the passage quoted in the text accompanying this note, Dworkin writes: "We should pause to notice what an amazing passage this is. It could have been written by almost any of the people Bork takes to be members of the academic conspiracy against him and the nation.").
For a vision of the Constitution substantially the same as Bork's, see Meese, Speech Before the D.C. Chapter of the Federalist Society Lawyers Division (Nov. 15, 1985), reprinted in The Great Debate: Interpreting Our Written Constitution 31, 33 (1986).
Our approach does not view the Constitution as some kind of super-municipal code, designed to address merely the problems of a particular era -- whether those of 1787, 1789, or 1868. There is no question that the Constitutional Convention grew out of widespread dissatisfaction with the Articles of Confederation. But the delegates at Philadelphia moved beyond the job of patching that document to write a Constitution. Their intention was to write a document not just for their times but for posterity.
The language they employed clearly reflects this. For example, they addressed commerce, not simply shipping or barter. Later the Bill of Rights spoke, through the Fourth Amendment, to "unreasonable searches and seizures," not merely the regulation of specific law enforcement practices of 1789. Still later, the Framers of the 14th Amendment were concerned not simply about the rights of black citizens to personal security, but also about the equal protection of the laws for all persons within the states. The Constitution is not a legislative code bound to the time in which it was written.Id. Meese added: "Neither, however, is [the Constitution] a mirror that simply reflects the thoughts and ideas of those who stand before it." Id.
n47 Cf. Twining, Talk About Realism, 60 N.Y.U. L. Rev. 329, 337 (1985):
It should be a working precept of all jurisprudential criticism and polemics that before launching an attack one should first identify worthy opponents and attribute to them what one considers to be the least vulnerable interpretation of their views that the relevant texts will sustain. Intellectual debate is impoverished when one attacks caricatures; soft targets generally only suit weapons with correspondingly low firepower.
n48 See Simien, It Is a Constitution We Are Expounding, 18 Hastings Const. L.Q. 67, 93 (1990) ("Much of the criticism [of originalism] . . . spills over from a
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critique of strict originalism and a failure either to perceive or to admit the differences between strict and moderate originalism.").
n49 See Kay, supra note 14, at 236-59. (Note that my reference is to Kay's response to the "It's Impossible" objection, not to his responses to the "It's Self-Contradictory" and "It's Wrong" objections. See id. at 259-92. I comment critically on Kay's response to the "It's Self-Contradictory" objection in the work from which this Article is drawn. See M. Perry, supra note 21. Kay's response to the "It's Wrong" objection seems to me basically sound.) Other good discussions include Maltz, Foreword: The Appeal of Originalism, 1987 Utah L. Rev. 773; Maltz, The Failure of Attacks on Constitutional Originalism, 4 Const. Commentary 43 (1987); Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
n50 See, e.g., Gerhardt, Interpreting Bork (Book Review), 75 Cornell L. Rev. 1358 (1990). Professor Michael Gerhardt is in good company: as far as I am aware, Ronald Dworkin, who seems to have a continuing interest in challenging Borkean originalism, has never cited, much less discussed, Kay's important work. See Dworkin, The Bork Nomination, N.Y. Rev. Books, Aug. 13, 1987, at 3; Dworkin, supra note 31. In the relevant chapter of his new book, where he briefly recites in the form of questions the claims to which Kay has responded, James Boyd White also fails to notice Kay's work. See J. White, supra note 43, at 113-40.
n51 Let us assume, for the sake of argument, that the original understanding of some constitutional provision is wholly inaccessible -- and that there is no present understanding of the provision that can fairly be imputed to the past. What is a judge to do?
The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that . . . is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it. . . .
Oddly enough, the people who relish agnosticism about the meaning of our most basic compact do not explore the consequences of their notion. They view the impossibility of knowing what the Constitution means as justification for saying that it means anything they would prefer it to mean. But they too easily glide over a difficulty fatal to their conclusion. If the meaning of the Constitution
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is unknowable, if, so far as we can tell, it is written in undecipherable hieroglyphics, the conclusion is not that the judge may write his own Constitution. The conclusion is that judges must stand aside and let current democratic majorities rule, because there is no law superior to theirs.R. Bork, supra note 31, at 166-67.
Note that my "for the sake of argument" assumption in the preceding paragraph is that the original understanding of some constitutional provision is wholly inaccessible -- and that there is no present understanding of the provision that can fairly be imputed to the past. In the real world of American constitutional law it is almost certainly never the case that there is no present understanding of the provision that can fairly be imputed to the past. Given significant continuities in the political-moral life of the historically extended American political community, there will surely always be some present understanding that can fairly be imputed to the past; some such imputation will surely always be more reasonable than treating the provision as a dead letter.
n52 The ninth amendment arguably refers to constitutional rights against the federal government. But it certainly does not name, or "enumerate," any such rights. See supra note 10.
n53 " Nonoriginalist nontextualism" is too cumbersome.
n54 Robert Bork reads chapter one of Alexander Bickel's book, The Least Dangerous Branch (1962), as presenting a nonoriginalist theory. See R. Bork, supra note 31, at 187-93. Bickel's chapter can fairly be read, however, as presenting a textualist conception of constitutional interpretation, and very likely the originalist conception. In particular, the chapter can fairly be read as contending -- contra Learned Hand, for example -- in support of judicial enforcement of the general principles established by the ratifiers. A presupposition of both Hand and Bickel seems to have been that the relevant constitutional provisions as originally understood represent somewhat general political-moral principles. (For Hand, that was a problem. See L. Hand, The Bill of Rights (1958).) Justice Brennan's textualist approach to constitutional interpretation seems no less originalist (in the sophisticated sense) than Professor Bickel's. See Brennan, The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 438 (1986) ("[T]he genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."). There seems no reason to doubt that the "great principles" to which Justice William Brennan was referring were anything other
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than those established by the ratifiers. For much the same construal of Justice Brennan's approach to constitutional interpretation -- by a prominent academic proponent of originalism who once served as Brennan's law clerk -- see McConnell, A Moral Realist Defense of Constitutional Democracy, 64 Chi.-Kent L. Rev. 89, 92 & n.16 (1988). Cf. id. at 100 ("Traditional constitutionalism is not hostile to judicial enforcement of aspirational principles -- if they can fairly be discovered in the text, structure, and purposes of the Constitution."). With respect to my previous work, Lawrence Solum stated
[T]he feature that Perry sees as most important in his theory -- the ability of constitutional prophecy to disturb -- is what makes Perry the constitutional theorist who can most accurately be called originalist in the only sense that it is possible to be one. In that sense, however, Perry's theory is not a method that judges can choose to use or to discard; his theory describes what judges must do when they interpret the Constitution.Solum, Originalism as Transformative Politics, 63 Tul. L. Rev. 1599, 1626 (1989).
n55 5 U.S. (1 Cranch) 137 (1803).
n56 See id. at 177.
n57 Moore, supra note 4, at 122-23; see id. at 121-23.
n58 For discussion of the idea of "specifying" indeterminate normative materials, including indeterminate legal materials, see infra note 83. See Part V for discussion of the indeterminacy of constitutional materials.
n59 Different normative theories of constitutional adjudication will defend different views of the normative materials not communicated by the constitutional text on which judges may or should rely in interpreting indeterminate normative materials communicated by the text.
n60 If that "non-original" understanding happens to be the original understanding as well, so much the better, but the nonoriginal understanding is authoritative even if it is not the original understanding.
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n61 Cf. Kay, supra note 31, at 1193 ("The influence of the Constitution is the consequence of continuing regard not for a particular assortment of words, but for the authority and sense of a certain constituent act.").
n62 See supra note 52.
n63 Cf. Scalia, supra note 49, at 862-63 ("[T]he central practical defect of nonoriginalism [Scalia seems to be discussing nonoriginalist textualism] is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned.").
n64 Smith, Law Without Mind, 88 Mich. L. Rev. 104, 112 (1989).
n65 Kay, supra note 14, at 234.
n66 Kay, Original Intentions, Standard Meanings, and the Legal Character of the Constitution, 6 Const. Commentary 39, 50 (1989).
n67 Kay, supra note 31, at 1193.
n68 Smith, supra note 64, at 119. (For an interesting response to aspects of Smith's essay, see Alexander, Of Two Minds About Law and Minds, 88 Mich. L. Rev. 2444 (1990).) See also McConnell, The Role of Democratic Politics in Transforming Moral Convictions into Law, 98 Yale L.J. 1501, 1526-29 (making much the same point Smith and Kay make). Agreeing that the original meaning of the constitutional text is authoritative, Tom Merrill suggested to me in conversation that a different rule might apply if we had a practice of re-ratifying the Constitution every generation.
n69 C. Sunstein, After the Rights Revolution 129 (1990). I suspect it misses the point to make that observation of statutes (federal or otherwise) as well.
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n70 Cf. id. ("courts might well conclude that what is controlling is the contemporary meaning of the statute").
n71 Id.
n72 See supra notes 43-44 and accompanying text.
n73 In at least one passage in his book Bork seems to come close to making the question-begging originalist argument for originalism. R. Bork, supra note 31, at 177. In the main, however, Bork seems to understand that any valid argument for originalism cannot be originalist:
Even if evidence of what the founders thought about the judicial role were unavailable, we would have to adopt the rule that judges must stick to the original meaning of the Constitution's words. If that method of interpretation were not common in the law, if James Madison and Justice Joseph Story had never endorsed it, if Chief Justice John Marshall had rejected it, we would have to invent the approach of original understanding in order to save the constitutional design. No other method of constitutional adjudication can confine courts to a defined sphere of authority and thus prevent them from assuming powers whose exercise alters, perhaps radically, the design of the American Republic. The philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.Id. at 154-55.
n74 Cf. Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985) (arguing that the founders' approach was not originalist in the "subjective intentions" sense of originalism). For a critical comment on Powell's article, see Lofgren, The Original Understanding of Original Intent?, 5 Const. Commentary 77 (1988).
n75 Beyond that, such an argument may work to weaken our doubts about the consistency of nonoriginalist approaches to constitutional interpretation with American political values. As my colleague Randy Barnett has suggested to me: "If [as you argue] nonoriginalism is defective because it has no roots in the
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American political-legal culture, why is not nonoriginalist textualism supported at least to some degree by demonstrating that it has just such roots?" That seems a fair point -- except that I am not aware of any demonstration that nonoriginalist textualism (as distinct from "objective meaning" originalism) has substantial roots in the political values even of the founding period, much less in modern American political values. (My argument about nonoriginalism, as distinct from nonoriginalist-textualism, is not that it has no roots in the political values of the founding period. Perhaps it does. My argument is that it has no substantial roots in the political values of modern American political-legal culture.)
n76 For a critical comment on Bork's argument -- and here I quote Richard Posner's construal of Bork's argument -- that
The judiciary should embrace originalism . . . [because] it is implicit in our democratic form of government. Originalism is necessary in order to curb judicial discretion, and curbs on judicial discretion are necessary in order to keep the handful of unelected federal judges from seizing the reins of power from the people's representativessee Posner, supra note 31, at 1369.
n77 See Smith, supra note 64, at 111-12.
To be sure, the words of the enacted law may continue to constrain the judge. But the essential fact that made those words (and not a science fiction novel, or even a law review article) efficacious to bind the judge -- i.e., the fact that the words express a specific collective decision made by the designated political authority -- is now de-emphasized or dismissed. The legal text is methodically dissociated from the phenomenon upon which its power to constrain depends.
The important question that emerges from this new perspective is not whether the statute, so viewed, could constrain judicial choice. Perhaps it could. But the critical question is why a statute, so understood, should constrain judges.Id.
n78 See, e.g., Meese, Toward a Jurisprudence of Original Intention, 2 Benchmark 1 (1986); Meese, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. Tex. L. Rev. 455 (1986); Meese, The Battle for the Constitution, 35 Pol'y Rev. 32 (1985). In his better moments, Meese contended for sophisticated originalism.
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n79 See supra note 54 and accompanying text.
Is (sophisticated) originalism "authoritarian" -- to use the (usually pejorative) term Frank Michelman has employed? "I will call . . . a looking backward jurisprudence authoritarian because it regards adjudicative actions as legitimate only insofar as dictated by the prior normative utterance, express or implied, of extra-judicial authority." Michelman, Law's Republic, 97 Yale L.J. 1493, 1496 (1988); see id. at 1496 n.11, 1522. "Dictated by" is unrealistically strong even if, to Michelman, polemically useful; something like "grounded in" seems less contentious. Does Michelman really mean to defend an approach to constitutional interpretation according to which "adjudicative actions" are legitimate even if not grounded in "the prior normative utterance of extra-judicial authority"? ("Grounded in" -- which, after all, I substituted for Michelman's "dictated by" -- does not mean "determined by." Elsewhere in this Article, and in the work from which it is drawn, I address issues related to the indeterminacy of original meaning.) What sort of approach does Michelman mean to recommend? Is it textualist? Nonoriginalist textualist? If so, how might Michelman try to meet the basic case against nonoriginalist textualism?
In the remainder of this Article I argue that the originalism/nonoriginalism debate is largely spent. I strongly doubt that a parallel authoritarian/nonauthoritarian debate is worth commencing. I strongly doubt, too, that Michelman would find the conception of constitutional adjudication and, more broadly, the conception of politics I elaborate and defend in the work from which this Article is drawn any more authoritarian than his own emerging conception. (I have begun to elaborate and defend my conception of politics in Love and Power. See M. Perry, Love and Power: The Role of Religion and Morality in American Politics (forthcoming 1991).) For Michelman's conception of politics, see Michelman, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 Tenn. L. Rev. 291 (1989) [hereinafter Michelman, Pornography Regulation]; Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. St. U.L. Rev. 443 (1989).
n80 Cf. R. Bambrough, Moral Scepticism and Moral Knowledge 137-38 (1979):
[W]e need to recognise that the question 'are all things of this sort good or bad?' cannot be answered by somebody who does not know the answer to any question of the form 'is this thing good or bad?' We must abandon the idea that to justify a moral or any other conclusion about an instance of an action or person or character or motive is to apply to that instance a principle from which, together with a description of the instance, the conclusion about the instance logically follows. If the question 'is this x good?' has not been answered, then the question 'are all x's good?' has not been answered. The mistake that philosophers have made in ethics is the mistake that they have made in all other branches of
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epistemology: they think that the foundations of our knowledge are to be looked for in the sky and not in the soil.
n81 See supra note 36.
n82 Specificity and generality are matters of degree, of course, as I have tried to indicate by using, or implying, the word "relatively."
n83 The process of generalizing a (relatively) specific norm seems familiar enough (e.g., from "no discrimination based on racist beliefs" to "no discrimination based on irrational prejudice"). The process of "particularizing" or "specifying" a (relatively) general norm should be familiar too. A judge "specifies" a principle, in the sense I mean, when she interprets the principle in the context of a particular conflict, when she determines what the principle means for the conflict at hand, what resolution of the conflict the principle (perhaps along with other principles) requires. In making such a determination, a judge contextualizes a principle; she makes the principle at least somewhat more "specific." James Madison's 37th Federalist Paper states: "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." The Federalist Papers No. 37, at 229 (J. Madison) (C. Rossiter ed. 1961).
In both legal and theological hermeneutics there is the essential tension between the text set down -- of the law or of the proclamation -- on the one hand and, on the other, the sense arrived at by its application in the particular moment of interpretation, either in judgment or in preaching. A law is not there to be understood historically, but to be made concretely valid through being interpreted. Similarly, a religious proclamation is not there to be understood as a merely historical document, but to be taken in a way in which it exercises its saving effect. This includes the fact that the text, whether law or gospel, if it is to be understood properly, [i.e.,] according to the claim it makes, must be understood at every moment, in every particular situation, in a new and different way. Understanding here is always application.H. Gadamer, Truth and Method 275 (Eng. tr. 1975); cf. K. Scheppele, Legal Secrets 94-95 (1988):
Generally in the literature on interpretation the question being posed is, What does a particular text (or social practice) mean? Posed this way, the interpretive question gives rise to an embarrassing multitude of possible answers, a
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cacophony of theories of interpretation. . . . [The] question that (in practice) is the one actually asked in the course of lawyering and judging [is]: what, the judge asks, does a particular text mean for the specific case at hand?Posner, What am I? A Potted Plant?, The New Republic, Sept. 28, 1987, at 23, 24 ("[A] court asked to apply a rule must decide, in light of information not available to the promulgators of [a] rule, what the rule should mean in its new setting.").
n84 See Farr, Understanding Conceptual Change Politically, in Political Innovation and Conceptual Change 24, 31 (T. Ball, J. Farr & R. Hanson eds. 1989) ("We find conceptual change whenever we find changes in any of the interrelated features of a concept . . ., in its criteria of application, its range of reference, or its attitudinal expressiveness."). The conceptual change I have been illustrating here is what Farr means by a change in "range of reference." Cf. M. Perry, supra note 41, at 133-34 (footnote omitted):
Some provisions of the constitutional text have a meaning in addition to the original meaning: Some provisions signify fundamental aspirations of the American political tradition. . . .
It seems invariably (though not necessarily) the case that the aspirational meaning of a constitutional provision, like the free speech clause of the first amendment, has grown out of the original meaning. The aspirational meaning has emerged over time . . . as a progressive generalization of the original meaning. . . . [T]he aspirational meaning of the Constitution is not inconsistent with, but indeed includes, the narrow original meaning.
n85 See Ball & Pocock, Introduction, in Conceptual Change and the Constitution 9-10 (T. Ball & J. Pocock eds. 1988) ("[P]rocesses of conceptual change and consequent interpretation have occurred, by means of which eighteenth-century language has acquired twentieth-century meanings. . . ."); cf. S. Cavell, Music Discomposed, in Must We Mean What We Say? 180, 206 (1969):
What looks like "breaking with tradition" in the successions of art is not really that; or is that only after the fact, looking historically or critically; or is that only as a result not as a motive: the unheard of appearance of the modern in art is an effort not to break, but to keep faith with tradition.My point here is that the originalist approach to constitutional interpretation necessarily eventuates in nonoriginal meanings in the sense of reasonable, if not always, or even often, demonstrably correct, specifications of original meaning. This point has nothing to do with the doctrine of stare decisis (and everything to do with originalism). A different point is that even pursuant to an originalist approach we can, and sometimes do, end up with nonoriginal meanings in the
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sense of mistaken readings of original meaning -- nonoriginal meanings that, all things considered, should not be disestablished notwithstanding that they are now understood to be incorrect readings of original meaning. That point has everything to do with the doctrine of stare decisis (and nothing to do with originalism, because the Constitution does not, as originally understood or otherwise, establish the doctrine of stare decisis).
n86 Hoy, The Interpretation of Sacred Texts: Methodological Issues, 9 Procs. of General Education Seminar 26, 28 (Columbia University, 1980-81); see also Hoy, Interpreting the Law: Hermeneutical and Poststructuralist Perspectives, 58 S. Cal. L. Rev. 135, 147 (1985) ("[T]he interpretation of a work is invariably conditioned by the prior history of the effects of that work. Any prior interpretation will count as part of that history. . . .").
Note that the dominant meaning of a constitutional provision can change over time. The aspect (or aspects) of the meaning of a constitutional provision dominant in the consciousness of an earlier time, because the aspect concerned a problem dominant in the consciousness of the time, may not be the aspect dominant in the consciousness of our time. A different aspect may be dominant in our time: an aspect concerning a problem dominant in the consciousness of our time. A change in the dominant meaning of a constitutional provision could occur even if the present meaning of the provision were identical to the original meaning: The aspect of the original meaning dominant yesterday may not be the aspect of the original meaning dominant today. A change in the dominant meaning of a constitutional provision seems more likely to occur, however, if the present meaning is fuller than, if it represents a development of, the original meaning. In any event, changes in the dominant meaning of constitutional provisions do not require an other-than-originalist approach to constitutional interpretation.
n87 R. Bork, supra note 31, at 167-68.
n88 Id. at 352.
n89 347 U.S. 483 (1954).
n90 R. Bork, supra note 31, at 169.
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n91 The eighth amendment provides, in relevant part, that "cruel and unusual punishments [shall not be] inflicted." U.S. Const. amend. VIII.
n92 See R. Bork, supra note 31, at 213-14; Scalia, supra note 49, at 563.
n93 If a judge is what Michael Moore calls a "moral realist," one would expect the judge, if an adherent of originalism, to be an adherent of "a morally realist originalism." According to Moore:
such . . . originalism would develop theories about the nature of equality, liberty, liberties of speech and of worship, cruel punishment, and the like, in a never-completed quest to discover the true nature of such things. To seek such theories is to conform to the original understanding, just as to seek to apply the word "tiger" by the best theory of what tigers are is to conform to the usual authorial intention in the use of that word.Moore, supra note 4, at 135 (footnote omitted).
Moore's defense of moral realism and his critique of moral conventionalism could be construed to confuse metaphysics, or ontology, with epistemology. See, e.g., id. at 135. Knowing Michael Moore, however, I strongly doubt that he is even a little confused about the distinction between metaphysics and epistemology. Perhaps the problem is that Moore is insufficiently careful to distinguish moral conventionalism from a coherentist conception of moral justification. As Moore no doubt understands, one can be a "realist" -- a moral realist no less than a scientific realist -- with respect to metaphysics but a conventionalist, in the sense of a "coherentist" or "holist," with respect to one's conception of justification -- moral justification no less than scientific justification. See M. Perry, supra note 79, at ch. 4 ("Rationality, Truth, and Critique"). (Sotirios Barber did seem to fall prey to a confusion of metaphysics with epistemology in his article, Barber, Michael Perry and the Future of Constitutional Theory, 63 Tul. L. Rev. 1289 (1989).) In his recent, interesting book, Graham Walker is quite clear about the distinction between metaphysics and epistemology, but he seems ultimately to misconstrue the epistemology at issue: coherentist epistemology. See G. Walker, Moral Foundations of Constitutional Thought 36-38 (1990). For example, Walker seems to confuse coherentist epistemology with what he calls "nihilist/subjectivist epistemology." Id. at 57; cf. H. Putnam, Reason, Truth and History, at xi (1981) ("the mind and the world jointly make up the mind and the world").
In any event, contrary to Barber's and Walker's criticisms of my work, see Barber, supra; G. Walker, supra, at 16-17, 36-38, 124-25, 144 n.106, I am not a moral conventionalist. I am a moral realist, as my new book Love and Power
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makes amply clear. See M. Perry, supra note 79. (Walker includes John Courtney Murray among those "contemporary thinkers . . . [who] have attempted 'moral realist' approaches to constitutional theory." G. Walker, supra, at 17, 46. Love and Power is partly a retrieval of Murray's work. See, e.g., J. Murray, We Hold These Truths (1960).) I am, however, an epistemological coherentist My conception of justification is coherentist. See M. Perry, supra note 79, at ch. 4. In his book, Walker understands Michael Moore -- correctly, in my view -- to be a moral realist who is also an epistemological coherentist, and Walker criticizes, in part on the basis of the morally realist position, Moore's coherentist epistemology. The epistemological differences between, on the one side -- the coherentist side -- Moore and me, and, on the other, Walker (and Barber?) are real differences. See Santurri, Nihilism Revisited, 71 J. Religion 67 (1991). I doubt, however, that the differences have much cash value, if indeed they have any, insofar as constitutional adjudication is concerned.
n94 See supra note 46 and accompanying text.
n95 G. Bassham, Constitutional Originalism: A Philosophical Study 121-22 (1991) (unpublished doctoral dissertation for the University of Notre Dame Department of Philosophy, on file with the author).
n96 Id. at 122-23. For a similar argument, see Simien, supra note 48, at 86-108.
n97 See L. Tribe, American Constitutional Law § 14-3, at 1164-65 (2d. ed. 1988) (discussing the establishment clause of the first amendment) (footnotes omitted):
Where the original intent not to outlaw a practice is clear, a judge ought to view the history as evidence that the practice does not violate the Constitution. The showing should not, however, settle the question entirely -- particularly if the context has changed. . . . To prevail, the opponent ought to demonstrate that, history notwithstanding, the practice offends the fundamental concepts . . . that underlie the constitutional language.
n98 The "relevant but not conclusive" position might explain Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934) (upholding a Minnesota law postponing mortgage foreclosures, seemingly in violation of the contracts clause). See infra note 101.
n101 One might want to argue, on that basis, that Home Bldg. & Loan Association v. Blaisdell was wrongly decided. For a discussion of the case, see C. Miller, The Supreme Court and the Uses of History 39-51 (1969). On the other hand, one might respond to an argument of that sort by insisting that the relevant description of the practice the ratifiers specifically understood the constitutional provision at issue to forbid is not P but P at time T, or P in context C, whereas the practice the court is being asked to invalidate in the name of the provision is P at time U, or P in context D. However, such a response may seriously underestimate the intertemporal continuities in American society, which is, after all, a political community, albeit an historically extended one. (I discuss the respects in which and the extent to which the United States is a (historically extended) political community in Love and Power and in the work from which this Article is drawn. See M. Perry, supra note 79; M. Perry, supra note 21.) As Brest writes:
A principle does not exist wholly independently of its author's subjective, or his society's conventional exemplary applications, and is always limited to some extent by the applications they found conceivable. Within these fairly broad limits, however, the adopters may have intended their examples to constrain more or less. To the [originalist] interpreter falls the unenviable task of ascertaining, for each provision, how much more or less.Brest, supra note 5, at 217 (footnote omitted); cf. Maryland v. Craig, 110 S. Ct. 3157, 3172 (1990) (Scalia, J., dissenting) (citations omitted) (brackets in dissenting opinion):
According to the Court, "we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." That is rather like saying "we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment's guarantee of the right to jury trial." The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for -- "face-to-face" confrontation -- but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the
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Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for -- "face-to-face" confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation. Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "'right to meet face to face all those who appear and give evidence at trial.'"
n102 That is, four versions worth considering. Not that with a little effort we could not imagine more, but I am not sure what the point would be.
n103 See supra note 44.
n104 Cf. supra notes 95-96 and accompanying text (Bassham's argument for "moderate intentionalism" originalism).
n105 See Solum, supra note 54, at 1612.
n106 Id. at 1601; cf. R. Bork, supra note 31, at 352. ("The concept of original understanding itself gains in solidity, in articulation and sophistication, as we investigate its meanings, implications, and requirements, and as we are forced to defend its truths from the constitutional heresies with which we are continually tempted.").
n107 Solum, supra note 54, at 1602.
n108 See M. Perry, supra note 21.
n109 See supra notes 80-85 and accompanying text.
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n110 42 U.S.C. § 1981 (1988). See supra note 34.
n111 See W. Nelson, supra note 17.
n112 Michelman, Pornography Regulation, supra note 79, at 298.
n113 A conception of politics, in the sense I mean, is partly descriptive, partly prescriptive, and partly strategic. A conception of American politics, for example, is, in its descriptive part, a conception of how the American polity and/or their representatives decide what political choices to make; in its prescriptive part, a conception of how the American polity and/or their representatives should decide what political choices to make; in its strategic part, a conception of how to close the distance between the former (the reality of American politics) and the latter (the ideal of American politics). Different permutations are imaginable: For example, in its descriptive part, a conception of American politics can be largely one "of interest-group pluralism, which sees politics as a battle for scarce resources among self-interested private groups," C. Sunstein, supra note 69, at 137, whereas in its prescriptive part the conception can be one of a deliberative, or dialogic, politics.
A conception of proper judicial role, as an aspect of a conception of politics, is, in its prescriptive part, a conception of the role the judiciary should play in the making of political choices and, in its strategic part, a conception of the role the judiciary should play in closing the distance between the reality of American politics and the ideal.
n114 Cf. R. Posner, The Problems of Jurisprudence 291-92 (1990) ("The interpretation of statutes is highly sensitive to theories of the legislative process, and these are controversial political theories and hence do not provide sure footing for judicial decisions. . . . 'Interpretation' is not foundational; it sits uneasily on shifting political foundations.") (footnote omitted); Posner, supra note 83, at 24-25:
[T]he decision to read the Constitution narrowly, and thereby "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly," or, "Read me narrowly." That decision must be made as a matter of political theory, and will depend on such
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things as one's view of the springs of judicial legitimacy and of the relative competence of courts and legislatures in dealing with particular types of issues.
n115 See R. Bork, supra note 31, at 216-17.
n116 Id. at 187.
n117 Laycock, Text, Intent, and the Religion Clauses, 4 Notre Dame J. L. Ethics & Pub. Pol'y 683, 687 (1990). Recall Bork's statement that "a judge should state the principle at the level of generality that the text and historical evidence warrant." R. Bork, supra note 31, at 149. Just two pages earlier in his book, however, Bork said: "The Constitution states its principles in majestic generalities that we know cannot be taken as sweepingly as the words alone might suggest." Id. at 147. I wonder how Bork would reconcile the two statements. (I wonder, too, how he would reconcile the latter statement with the statement quoted supra note 88 and accompanying text.) Bork seems to assume that "historical evidence" warrants a construal of original meaning narrower than the construal warranted by textual language alone. As a generalization about all constitutional provisions, that assumption is surely a perilous one (even if it is true of some provisions that historical evidence warrants a construal of original meaning narrower than that warranted by text alone). If that is indeed Bork's assumption/generalization -- how else might the two statements be reconciled? -- it seems an instance of the phenomenon called wishful thinking.
n118 See McAffee, supra note 14, at 1224-25, 1238-39.
n119 Kay, supra note 14, at 235. See McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1115-16 (1990) (discussing the free exercise clause of the first amendment) (footnote omitted):
While we cannot rule out the possibility that the term "prohibiting" might impliedly be limited to laws that prohibit the exercise of religion in a particular way -- that is, in a discriminatory fashion -- we should at least begin with the presumption that the words carry as broad a meaning as their natural usage.
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n120 See Powell, Rules for Originalists, 73 Va. L. Rev. 659, 688-89 (1987). If or to the extent historical inquiry yields a confident conclusion that there was dissension among the ratifiers as to whether a constitutional provision meant X, see id. at 690-91, dissension to the point that apparently no majority of ratifiers understood the provision to mean X, even if some ratifiers did so understand it -- then a reading of the original meaning to the effect that it meant, inter alia, X is historically implausible.
n121 See supra note 83.
n122 R. Bork, supra note 31, at 163. Bork seems more cognizant of the indeterminacy of the interpretive inquiry constitutive of the originalist approach than of the indeterminacy of the historical inquiry. He often fails to see the range of historically plausible readings of the original meaning of a constitutional provision. For example, Bork claims that "[t]here is almost no history that would indicate what the ninth amendment was intended to accomplish. But nothing about it suggests that it is a warrant for judges to create constitutional rights not mentioned in the Constitution." Id. at 183. Similarly, he argues that the original meaning of the privileges or immunities clause of the fourteenth amendment "is largely unknown." Id. at 39. With respect both to the privileges or immunities clause and to the ninth amendment, the historical record is richer, and more complex, than Bork allows. See supra notes 15 & 18 and accompanying text.
n123 R. Bork, supra note 31, at 5. See Southern Pac. Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting) ("I recognize without hestitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.").
n124 R. Bork, supra note 31 at 252; see id. at 318; cf. id. at 254 (on the role "[m]oral philosophy has . . . to play in constitutional law, . . . in assisting judges in the continuing task of deciding whether a new case is inside or outside an old principle").
n125 James Bradley Thayer's "Rule of the Clear Mistake" -- as Bickel called it -- can be understood as such a rule. See A. Bickel, supra note 54, at 35-46; see also M. Perry, supra note 3, at 17-19 (discussing Thayer's approach). For a rather different approach -- one that favors a specification of a liberty-protecting
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constitutional principle that maximizes the particular liberty at stake -- see Smith, Establishment Clause Analysis: A Liberty Maximizing Proposal, 4 Notre Dame J. L. Ethics & Pub. Pol'y 463 (1990).
n126 See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
n127 Cf. C. Sunstein, supra note 69, at 160-92 (presenting a series of interpretive principles).
n128 Or as to the proper specification of -- or even, prior to specification, as to the proper understanding of -- constitutional case law, constitutional precedent. In the real world of constitutional adjudication, relevant precedent is often crucial, of course. (The doctrine of stare decisis makes it so.) But there often will be disagreement as to what a precedent means or, even if there is agreement as to what a precedent means, disagreement as to the proper specification of the precedent, the proper direction in which to develop it, in the context of the case at hand. Precedent is often indeterminate; it often underdetermines resolution of the case at hand. As with the indeterminacy of the historical inquiry into original meaning, and as with the indeterminacy of constitutional principles, a judge may have a rule of thumb for dealing with the indeterminacy of precedent. Cf. Tribe & Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1072-77 (1990) (comparing law to literature, analogizing aesthetic conventions that rule out non sequitur endings to "widely shared beliefs" that shape the evolution of precedent). But originialism is committed to no particular rule of thumb.
n129 See supra note 10.
n130 See supra note 11.
n131 I should emphasize that I am not interested in mounting an assault, credible or otherwise, on modern constitutional law. I am interested in mounting a (credible) defense of many basic features of modern constitutional law.
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n132 Frank Michelman and Richard Posner seem to share this view. See notes 112 & 114. I address the problem of politics and proper judicial role in the work from which this Article is drawn. See M. Perry, supra note 21.
n133 Cf. M. Perry, supra note 41, at 280 n.7:
Although it is serviceable for present purposes, I'm not comfortable with the "originalist/nonoriginalist" terminology. There is a sense in which we are all originalists: We all believe that constitutional adjudication should be grounded in the origin -- the text that is at our origin and, indeed, is our origin. But there is a sense, too, in which none of us is an originalist: As Gadamer, for one, has taught us, we cannot travel back to the origin, no matter how hard we try, and we deceive ourselves if we think we can. "It is enough to say that we understand in a different way, if we understand at all."(quoting H. Gadamer, supra note 83, at 264).
