I am back in Washington, DC, where I'm visiting at Georgetown for the Fall Semester after four days in Chicago for American Political Science Association annual meeting. This year's APSA really has a buzz--and some really fine panels on constitutional theory. The Internet access in the conference rooms was iffy, so I'm posting some conference bloggind today.
The first post is on the panel on The New Originalism and it had an "all star" lineup--Jack Balkin, Sot Barber, Randy Barnett, Jim Fleming, Sandy Levinson, and Keith Whittington.
The usual caveats about live blogging apply. These are my impressions of what the speaker's said, and they are necessarily incomplete. But this was a terrific panel, with lots of interesting twists and turns.
James Fleming (who recently moved from Fordham to Boston University) introduces the panel by raising the question whether "we are all originalists now." What is the "new originalism"? What is new about it and how is it different from the old originalism? Does it have the same problems, or not? Some scholars have argued that the new originalism suffers from the same deficiencies--Fleming and Barber have argued it is exactly the same. The panel includes three new originalists--Barnett, Whittington, and Balkin. Barber and Fleming are Dworkinian critics of originalism. Sandy Levinson is a critic of everything. (Fleming really has a point--Levinson is nothing if he is not an Iconoclast.)
Fleming raises what he calls "the balkanization of originalism." (Fleming is playing off Jack Balkin's punning name for his blog, "Balkinization.) Scalia has a famous critique of nonoriginalism--that the "nonoriginalists" do not agree on anything other than that originalism is wrong. He added: "you can't beat somebody with nobody" or "it takes a theory to beat theory." Fleming says there are numerous varieties of originalism and that the only thing they reject is the moral reading of the constitution. The forms include intentions of the framers, intentions of the ratifiers, original-meaning originalism, faint-hearted originalism, broad originalism, the new originalism, and abstract originalism, plus Balkin's method of text and principle. Given how much these versions of originalism differ--there are all manners of originalism.
Sandy Levinson is first up. He begins with discussion of Keith Whittington's The New Originalism. Whittington offers interesting distinctions between the old and new originalism. The old originalism was propounded by those who did not control the courts and who believed that originalism was a method for defending judicial restraint. Bork wrote that the original intent of the framers was the only legitimate method, but he never demonstrated any interest in history. Bork was actually a parliamentarian, who wished that we had embraced parliamentary supremacy. Given that we can't have that, the next best thing for Bork is to neutralize the constitution.
Levinson continues. When Whittington comes along, the Warren Court is gone and conservatives are no longer enamored by judicial restraint. Part of what makes the new originalism distinctive is not only that is intended to guide judicial decisionmaking, but "the new originalism . . . requires judges to uphold the original constitution, nothing more but nothing less . . . not judicial restraint." Goodbye Bork and Graglia and hello judges who do much more vigorous things. Levinson then notes that what makes Balkin interesting is that he is not a political conservativism, but he has embraced the mantle of new originalism. Sandy is right about this, but I think the story is much more complicated than that. Back in the 1980s, I was arguing that the new forms of originalism that were already emerging lacked clear political valence and would be embraced by the left: this claim was explicit in Originalism as Transformative Politics. It is no accident that Randy Barnett called his first foray into originalist theory, An Originalism for Nonoriginalists.
Levinson then opines that Whittington's view suffers from the defect that the only judges who feel licensed to care what the framer's thought are members of the Supreme Court. Members of lower courts do not feel empowered to say the Supreme Court got it wrong. An exception is Brevard Hand who was "ruthlessly silenced" by the Eleventh Circuit. It is an unfortunate empirical truth that the overwhelming number of judges does not feel able to be originalists except in cases of first impression. And no lawyer can be committed to any theory of interpretation. If I have a nonoriginalist judge, then I argue to him. So who is the audience for high level constitutional theory? Academics! No one else is interested. (At one level, Levinson is obviously write--high constitutional theory cannot realistically aim at a "big bang" "mass conversion" of all practitioners and judges. To the extent that constitutional theorists aim to move beyond the intrinsically valuable activity of "getting it right," their goal must be long-run, starting with academic acceptance and proceeding to incremental conversion of those engaged in legal practice.)
There is no reason to believe that originalism or any other ism has controlled debate about constitutional change. The thing that is constant is that is relentless adaptation of the constitution to circumstances. Sometimes it is good. Sometimes it is bad. All of the intellectual attacks on originalism in terms of doing history apply to the new originalism. These attacks have not been answered, even with more competent historians. (Levinson didn't explain this last point, which seems to ignore the responses made by new originalists. Of course, "history" is required, but because the relevant inquiry of "original meaning originalists" is into the public meaning (or "conventional semantic meaning" of constitutional texts, the enterprise is different in kind from that engaged in by "original intentions originalists" who were required (literally) to "read the minds" of the framers and ratifiers.)
Keith Whittington is next. The 2004 article that Levinson refers to--Whittington saw as intellectual history and not as a theoretical statement of the new originalism. Levinson is right that the movement developed as a reaction to the Warren Court and into more recent times as a movement that is less concerned with judicial deference. The recent originalism is more comfortable with the power of judicial review. Whittington's own normative work--in Constitutional Interpretation (1999)--endorses a more "activist" originalism. Whittington's own instinct is consistent with other originalist scholars. Those who are attracted to originalism are, in fact, more comfortable with the courts. But Whittington is an academic and not a politician; he does not represent a political movement. Scalia may think that the unity of originalism is an argument for it, but Whittington does not see that as a strong argument.
The other point that Whittington would like to make is an issue of thinking about principles in thinking about modern originalism. Whittington emphasizes the importance of thinking about constitutional principles as opposed to expectations about how rules are to be applied. The founders’ expectations may be helpful, but they are not what the text means. There are a variety of reasons why there could be a gap between expectations or practice and the meaning of the text. It may be that the Constitution as implemented may not have fully implemented the principles or text. The statutes may have only partly recognized rights or partly extended Congress's powers. Or the original practice may not have tested the limits of constitutional power, for example. Early applications may not tell us how contemporary issues would have been handled. And political compromise and temptation may have led to unconstitutional practices. What we want to implement is what they drafted and what the text means and not what they did when they attempted to govern. And they could be wrong about what principles required in practice. We want to know the rule and the principles, but the details could have been wrong.
The question we should ask is "not what would Madison do" but "what does the principle in the Constitution require in the circumstances." That is what originalism should aim at. (I can't really do this portion of Whittington's presentation justice here; it was a remarkably lucid and elegant summary of complex ideas in just two or three minutes.)
The next speaker is Jack Balkin. Balkan thought he should talk about "progressive originalism". How do you do it? For Balkin, the issue is how to be faithful to the constitution's commands as law. Fidelity requires that we be faithful to the text and the original meaning of the text. The text has rules, standards, and principles. Where the constitution enacts a principle, you must be faithful to the principle. This leads to a distinction between original expected application and original meaning. Early originalism conflated this two.
Balkin offers an example: Does the constitution give women any degree of equality? If we use original expected applications, the answer is no. The framers of the 14th Amendment did not want to upset existing coveture law. But they wrote the due process, equal protection, and privileges or immunity clauses. The purpose of these clauses was egalitarian, and they spoke in broad phrases growing out of the abolitionist movement. How can we be faithful to the text? How do we apply the principles they enacted into law? If you think about original meaning in that way it can comprehend many of the most valuable features of our constitutional tradition over time. Scalia's view is that constitutional development is mistaken precedents. But Scalia now takes the position that important features of the American republic were mistakes. This feature of Scalia's view is opposed to Balkin's view that our job is figure out how the constitutional principles apply to us. This difference suggests that the new originalism is better able to account for American constitutional development.
Balkin then observes that the old originalism can be called "New Deal Constitutional Conservatism." Although it might sound odd to call conservatives "new dealers," almost everyone (including political conservatives) agrees on the New Deal. There are, however, there are different interpretations of what the New Deal means. The conservative view of New Deal originalism can be seen as a political compromise that doesn't give an account of why originalism would be attractive. The primary motive of New Deal jurisprudence, for conservatives, is simply to constrain judges. Balkin's theory addresses citizens: "What does the Constitution mean to me?" To explain constitutional change you must understanding disagreement over the Constitution's meaning. (As I've said before, Jack Balkin is both one of the most brilliant practioners of high legal theory, he is also a master rhetorician, who is particularly effective in the kind of spontaneous give and take that characterizes the APSA roundtable format.)
Sot Barber is next. He is confident that there is no substance to the new originalism. Consider the "due process clause." There are two or three semantic possibilities re its meaning: (1) due process itself, the thing, (2) what they intended when they put it in the constitution, and (3) their intended applications. On any view of the framers, they must have meant what they said. What they wrote is "due process." There were no definitions. They must have referred to "due process" itself. They must have assumed the fallibility of their own interpretation. If they intended "due process" itself, they assumed judges would self-critically think about what due process itself. This is the philosophical approach or the moral reading. Concrete originalists must find meaning in the founding generation’s applications or definitions. The problem with all forms of concrete originalism--they fail for a variety of reasons. They distort ordinary linguistic practice and leave us with definitions of nothing at all and lock us into moral and scientific errors. Concrete originalism refuses to die.
A regime that promotes self-indulgence ignores that any of us can be wrong about things like due process. Abstract originalism implies an elite. But these observations insult the authorities they would serve. They assume we cannot organize to pursue the true meaning of our constitutional values. So originalism lives as an academic ideology. There is no middle way between Taney and Dworkin. Original understanding can only refer to the three options: original definitions, original applications, and the things themselves.
Barber quotes Balkin on criticisms of Roe:"The conventional wisdom about Roe is wrong. It is based on the text of the 14th Amendment." If that is the new originalism, then says Barber, "I will buy it." Contrast this to Barnett on the Commerce Clause. Barber then quickly enumerates a series of criticisms of Barnett's originalist take on the Commerce Clause, and concludes that if the new originalism is what Barnett makes of it, then Barber rejects it. (This summary cannot really display the impact that Barber had on the room. His critique of the new originalism was delivered with a tremendous emotional punch, and created a sense of real challenge.)
Randy Barnett is next. He has two points. First, the original meaning of the text only extends as far as the original meaning actually goes. Beyond that, meaning runs out. Those who are looking for meaning are looking at the text--it has the meaning it has, no more and no less. When the text runs out, you leave the realm of interpretation and enter the realm of construction. Constitutional constructions must be consistent with the text but are not deducible from it. This is fundamental: the text gives only that guidance which he words or phrases express. It does require historical research, and there may be disagreement. For example, is the equal protection clause a general equality principle or does "protection of the laws" have a more limited meaning? Originalists can disagree about issues like this.
Second, the original meaning of the text of 1787 was radically altered by the 14th amendment. We do not have the same Constitution as in the 1789. Conservatives really did want more content from the text than is really there. They wanted to find more content than is actually in the text. You can't look the text itself. They tried the intentions of the framers. More recently they looked at original expected applications. They do this to get content that is not in the text itself. When you are doing that, you are not doing constitutional interpretation. You are going beyond the meaning of the text.
Progressives are afraid that conservatives are right. They are afraid that the original meaning is too constraining, when they should be more skeptical of conservative claims about original meaning. Many conservatives originalist act as though there were no 14th Amendment. They act as if only the intentions of the 1789 Constitution count. In Barnett's view what counts is the public meaning, and the public meaning of 14th Amendment is radical alteration of the Constitution of 1789. That made the Constitution a far more radical document. The Supreme Court then read those provisions out of the Constitution, in cases like The Slaughterhouse Cases. Balkin's endorsement of originalism speaks to progressives. Balkin's practice is a marker for how originalism as properly understood is neither conservative nor progressive, leaving room for disagreement about constitutional principles.
Barnett says that concrete originalism as definitions, examples, and applications, but there is also the original concept--there may be different conceptions of that concept. The concept is there and it should be evaluated as of the time the enactment. There may be different conceptions of the concept, but there is no warrant for the concept changing.
Fleming then offers a round of response to the panelists.
Levinson relates some autobiography. Barber and he are the "old timers" on the panel. An important part of intellectual life in the 1960s was the development of the Quentin Skinner or nominalist approach to study of the past. Skinner thought that it wasn't valuable to see a historical conversation about great concepts that endure over time. These terms are very specific rhetorical terms in particular political debates. They must be understood in context, and not in terms of what the concepts actually meant. Some of Levinson's suspicion may be rooted in Skinner's approach. The 1960s also saw the rise of the new social history. When he left graduate school, one couldn't talk about big categories--conflicts were understood in terms of very narrow interest groups, such as Lutherans and Presbyterians in Minneapolis. Originalism of any kind requires that you be a competent historian, but Levinson believes you cannot generalize very much from historical work. What one learns is how different the takes were.
Whittington agrees with Levinson. When he started his work, he thought it would focus on particular clauses. But he has not, in fact done that. He agrees that it is difficult. There are limitations in discovering the original public meaning. Barber suggested a real difference about the nature of judicial review. Barber suggests that it is offensive to the founders to say that the due process clause doesn't reference what "due process really means". The implication of that is if Randy were to write a constitution guaranteeing liberty, it would be offensive to Randy to interpret Liberty as negative liberty and interpreting it as a guarantee of welfare rights.
Barber says that Whittington has posed a challenge they could not meet. Could Whittington and Barnett write a constitution? He thinks not. It would be fully of examples and quotation marks. Whittington and Barnett talk about a difference between original and current understandings. Is there any word in the preamble of the Declaration of Independence that has changed meaning?
Barnett notes that he agrees with Barber that words have not, for the most part, changed meaning. Most of the meanings have not been changed. Instead whole clauses of the Constitution have been redacted or "wrote out of the Constitution." What Barnett argues for is restoring the parts of the Constitution that have been written out of the Constitution, such as the Ninth Amendment, the Second Amendment, the Privileges and Immunities Clause, and so forth.
Balkin suggests that Article Four provides some examples. The original meaning of "domestic violence" was riots, the contemporary meaning is "spouse abuse." Another example is "Republican form of government," and the contemporary meaning of Republican refers to a particular political party.
Levinson suggests that the Declaration of Independence doesn't single which of the 108 theories of equality is the correct theory of equality.
Fleming opens the floor to questions, and calls on Larry Solum. My question is directed at the ways in which the panel agrees and those in which they disagree. There seems to be agreement among all the panelists that the meaning of the Constitution is sometimes determined by "principles," because some of the general and abstract provisions of the Constitution (such as freedom of speech) either are stated as broad principles or require resort to principle in order to resolve vagueness. But there seems to be disagreement among the panel about the nature of these principles. Two different theories were offered by Barber and Barnett. Sot Barber seemed to endorse the view that the provisions of the constitution refer to "real things" with "essences," implicitly invoking Saul Kripke's theory of natural kinds. Randy Barnett seemed to allude to John Rawls's distinction between concepts and conceptions: the Constitution deploys the "concept of freedom of speech" but Whittington/Barnett "construction" is required to determine which conception of that concept would guide application of the Constitution. Barber's position, however, would seem to run into well-known problems with the notion that "moral kinds" are like "natural kinds," a position that has almost no adherents in metaethics. (At this point, Barber interrupted to interject that he does hold this position.) I invited members of the panel to comment on these issues and specifically asked Jim Fleming whether he agrees with Barber or whether he instead endorses the Rawlsian concept/conception distinction as he has seemed to do in his published writings.
Barber responded first, noting that many constitutional theorists seem to suffer from what he called "Platophobia" (which I interpret as fear of Plato's views about "real essences.") I was unable to transcribe the full content of Barber's defense of Plato, but the gist of his remark was that we should overcome this phobia, presumably so that we could grasp the arguments for some variety of "real essence" moral realism about ideas like "due process."
Fleming then responded that in the book he recently co-authored with Barber, the issues raised by my question had been bracketed, and noted that his own (Fleming's) position is Rawlsian.
The next question came from Steve Macedo, who noted that there seemed to be lots of agreement about the role of principles, but queried whether "history" was relevant to the enterprise given the large role played by principle. Balkin responded that the history does sometimes matter, giving the example of "writings" in the IP clause--where knowledge of the history is required to determine whether writings was being used in a broad or narrow sense. Levinson points out that he agrees that some parts of the Constitution are determinate, e.g. two Senators, but that the disagreement is about those parts of the Constitution where this is not the case. Whittington thinks that history is quite relevant to a variety of clauses. We do look to history to learn what principles are in the Constitution. History could tell us that it was a particular principle or that the decision was "punted to the future." Barber wants to assume that the decision was "punted to the future." You would want to look at the historical evidence first. Barnett indicated that the audience might walk away the session with an impression of too much agreement. There is fundamental agreement on the panel, but there are three areas of potential disagreement: (1) disagreement about particular clauses, such as about the equal protection clause: this is a disagreement within originalism, (2) do we want restore the parts of the Constitution have been written out of the Constitution, (3) the next move is that some originalists have said, "OK, that is the original meaning, but what is the appropriate judicial role," shifting the conversation to another topic; Keith's proposal of judicial restraint in response to vague text may be another example of this; disagreements about judicial role are disagreements outside of originalism.
The next question came from Chris Wolfe: Wolfe opined that originalism has always focused on judicial role. There is nothing in the Constitution that says that judges have the power to strike down legislation, and therefore, originalists should have serious questions about the institution of judicial review. Why if you have an indeterminate constitutional provision, should judges resolve the issues? Little in the Constitution suggests the founders wanted judges to interpret the vague framers. Balkin responded that with respect to many of the great constitutional controversies, the 14th Amendment that is at stake. There was an explicit discussion in debates over the 14th Amendment that really cannot be understood other than as an endorsement of judicial review.
Mark Graber asked how does one tell what is a conception of free speech or equality? If it is a different conception than those available to the framers, and someone says that is not a conception of free speech. If the framers didn't understand conceptions, then one element of nonoriginalism is what counts as a conception.
Another questioner asked, "Isn't it true that none of you have identified what the principles of the constitution are? Isn't essential to get to the principles of the constitution? The constitution is written at several levels of generalization." Balkin responded that the constitution is written at different levels of generality, and it includes principles. If we are going to do constitutional interpretation, we must do structural arguments; that move must be part of the toolkit. Barber commented that both he and Barnett have defended general interpretations of the Constitution. Levinson commented that this is a central question. Levinson wrote an article on a case dealing with the need for new immigrants to adhere to the principles of the Constitution, and the Court said that the Constitution boils down to Article V. This is why Carl Schmitt said that all the Constitution requires is supermajority rule.
Barnett responding to Chris Wolfe's earlier question that any version of originalism will give you judicial review, because the evidence is overwhelming that "judicial power" included the power of judicial review. But with respect to the vague provisions, there is disagreement about judicial role.
And with that the session came to a close. It was an illuminating event. My take is that the most important issue to emerge from the session concerns the role that "principles" play in "the new originalism" or "original meaning originalism." Here are just a few tentative thoughts:
· None of the panelists was particularly clear about what principles are. Jack Balkin came closest when he alluded to a typology that distinguishes between rules, standards, and principles. It is surely important to have precise conceptions of these three different entities in discussing this issue.
· It is important to distinguish two different roles that principles could play. The first role is assumed by principle in cases where the constitution provision at stake is framed as a principle. Perhaps "freedom of speech" is an example of this role. The second role is assumed by a principle in which the constitutional provision at stake is vague or ambiguous and a principle is used to resolve the vagueness or ambiguity.
· Original meaning originalists need some answer that addresses the question that I posed to Sot Barber about the content of principles: (1) do principles refer to "moral kinds" with essences analogous to Kripkean natural kinds? (2) do principles refer to contested concepts of which there can be different conceptions--and if so, how do we choose among conceptions, e.g., (a) by choosing the conception of the concept that prevailed at the time of adoption (if there was only one), (b) by choosing among the various conceptions that prevailed at the time of adoption (if there was more than one), (c) by choosing the "best conception of the concept" as identified by reflection and debate based on contemporary knowledge and values, or (d) by some other method? (3) Do principles refer to some other kind of entity, neither moral kinds with essences nor contested concepts, and if so, what kind of entity are principles?
· Once we have determined that the constitutional text requires invocation of a principle, is it the case that "interpretation" (in the Whittington-Barnett sense of determining "meaning") has reached its limit and "construction" (in the Whittington-Barnett sense of supplementing "meaning") is required? If so, then what theory or normative standard guides construction? Both Barnett and Whittington seem to agree that a normative theory (as opposed to a theory of meaning) is required. Whittington's theory seems to emphasize judicial role and democratic legitimacy, and hence to justify judicial restraint. Barnett's theory of constitutional legitimacy emphasizes the role of "justice" and hence does not call for restraint, endorsing instead judicial action to insure the justice of basic institutions. What position does Balkin take on this disagreement between Whittington and Barnett? I am far from sure, although my impression is that Balkin's approach resembles Barnett more than Whittington.