Thomas Colby and Peter J. Smith (George Washington University Law School and George Washington University Law School) have posted Originalism's Living Constitutionalism on SSRN. Here is the abstract:
Originalists have consistently argued that originalism - which (they claim) accords to the Constitution fixed and determinate meaning - is the only constitutional theory that treats the Constitution as a form of law, respects the properly limited judicial role in a democratic society, and constrains judges' ability to impose their own views under the guise of constitutional interpretation. We endeavor to undermine these claims to exclusive coherence and legitimacy by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally are in agreement only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the writtenness of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists - the framers of originalism, if you will¿as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that they have articulated - and continue to articulate - a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, we argue, originalism is a jurisprudential theory with its own living constitutionalism.
Here are some additional excerpts from the paper. First, this:
A review of originalist literature reveals originalism to be not a single, coherent, unified theory of constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label. The fact that each of these distinct theories claims to be the only legitimate means of constitutional interpretation belies the vision—crucial to originalism’s self-image and its normative force—of a monolithic theory standing tall and firm, deflecting countless hapless attempts to knock it down. The more accurate picture is one of a collection of rapidly evolving theories, constantly reshaping themselves in profound ways in response to devastating critiques, and not infrequently splintering further into multiple, mutually exclusive iterations.
And this:
The original “jurisprudence of original intent”20 slowly gave way to one of original meaning, determined by reference to the understanding—held by either the drafters, those who voted in state ratification conventions, or the general public, depending upon whom you asked—of the relevant provision at the time of its adoption. And from there, originalist theory gradually shifted again, to a jurisprudence of objective textual meaning. Today, pressing that theory to its logical extreme, several of the most prominent academic proponents of originalism dismiss not only the original intention of the framers but also the actual original understanding of the framing generation. Instead, they seek to determine how the words of the Constitution “would have been understood by a hypothetical, objective, reasonably well-informed reader of those words and phrases, in context, at the time they were adopted and within the political and linguistic community in which they were adopted.”21
And finally this:
In one respect, this story of evolution reflects well on originalists. The proponents of any rigorous theory should, after all, constantly strive to improve it, to smooth out the bumps of incoherence. For most theories, such development is a virtue, a sign that its proponents are sufficiently humble to respond to criticism and to recognize the room for theoretical maturation.
But with originalists it is different, for one very important reason. Originalists do not believe that there are some good and some bad methods of constitutional interpretation, with perhaps one that seems better than all the others. Rather, they start from the premise that there is a “correct” method of constitutional interpretation,186 from which it necessarily follows that all other methods of interpretation are not simply inferior, but also wrong.
As readers of Legal Theory Blog will undoubtedly guess, I have a variety of reactions to this piece. But let me begin with the praise. Although I might quibble with some of the rhetorical flourishes, I really enjoyed Colby and Smith's article. It makes telling points and, at the very least, it sounds a cautionary note that should rein in any exaggerated claims of consistency by originalists. It should be read by anyone interested in constitutional theory generally or originalism in particular.
However, I do have some substantial reservations about the Colby and Smith's arguments and conclusions.
Start with an obvious point. When they are arguing for the plurality of originalist thought, Colby and Smith are careful to distinguish different forms of originalism. It would be absurd to assume that views articulated by Raoul Berger can be attributed to Keith Whittington and Randy Barnett, simply because Berger, Whittington, and Barnett all can be labeled "originalists." Why then do Colby and Smith fail to make the same careful distinctions when it comes to the central object of their attack, the alleged claims by originalists that originalism is a single, unified view that is uniquely correct? This issue is highlighted in the following excerpt from the longer passage quoted above:
Originalists do not believe that there are some good and some bad methods of constitutional interpretation, with perhaps one that seems better than all the others. Rather, they start from the premise that there is a “correct” method of constitutional interpretation,186 from which it necessarily follows that all other methods of interpretation are not simply inferior, but also wrong.
Following Colby and Smith's own approach to originalism, shouldn't that passage read as follows:
[Some] [o]riginalists do not believe that there are some good and some bad methods of constitutional interpretation, with perhaps one that seems better than all the others. Rather, [these originalists] start from the premise that there is a “correct” method of constitutional interpretation,186 from which it necessarily follows that all other methods of interpretation are not simply inferior, but also wrong. [Other originalists do not make this assertion, assuming explicitly or implicitly that theories of interpretation are better or worse. Still other originalists do not seem to address this question at all.]
This point leads to another feature of Colby and Smith's mode of argumentation. Criticism of a theory is best done by strict adherence to the principle of charity in interpretation and the method of separation of cases. The principle of charity in interpretation requires that one attacks the strongest and not the weakest version of one's opponent's arguments. The method of separation of cases involves considering alternative interpretations of one's opponent's arguments & demonstrating the problems with each of the alternatives. You will need to read Colby and Smith's fine article and judge for yourself whether they have consistently interpreted originalists arguments charitably and whether they consider all of the plausible alternatives before drawing conclusions.
Let me take a stab at my own interpretation of some of the phenomena that Colby and Smith observe. We can with this passage in Colby and Smith's essay:
When an originalist says that “originalism” is the only legitimate method of constitutional interpretation, what he means is that his particular brand of originalism is the only legitimate method of constitutional interpretation. To originalists like Raoul Berger and Bruce Fein, “the doctrine of original intent is the only legitimate judicial guide for constitutional jurisprudence.”192 To originalists like Steven Calabresi193 and Robert Bork, however, “only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy.”194 To originalists like Justice Scalia, by contrast, the only form of constitutional interpretation that “take[s] the need for theoretical legitimacy seriously” is an approach that seeks the objective original meaning of the text.195 And to originalists like Vasan Kesavan, Michael Stokes Paulson, and Gary Lawson, the “originalism” that is the “single, ‘true’ method of constitutional interpretation” is “original, objective-public meaning textualism”196—which surely would have come as quite a shock to Raoul Berger and the other pioneers of the modern originalist movement.
Do originalists believe that their own "particular brand of originalism" is "the only legitmate method of consitutional interpretation"? It seems obvious that Colby and Smith have not fully or charitably captured the beliefs that can reasonably be attributed to originalists. To illustrate this point, let me take my own views as an example.
I have argued for a version of "original public meaning originalism"--which draws on Paul Grice's work in the philosophy of language. The gist of my view is that the semantic content of the constitution is approximated by the conventional semantic meaning of its words and phrases in context. There are lots of qualifications and distinctions in the full statement of the view, but for now, let's stick with a simplified version: the meaning of the constitution is fixed by the conventional semantic meaning of its clauses at the various times they were drafted and ratified.
Do I believe that my own "particular brand of originalism" is "the only legitimate method of constitutional interpretation"? Like any other theorist with integrity, I believe that my own views are "true" or "correct" or "the best available." I wouldn't hold my views unless I believed in them. Like most other scholars, I believe my views are correct, even though I also believe in my own falibility. That is, I think that it is possible that my particular views about constitutional interpretation could be incorrect in grand conception or in small detail. Indeed, my own views have changed over time. When originalist theory included only "original intentions originalism," I was inclined to believe that this form of originalism was false, and it then seemed to me that something like Ronald Dworkin's theory as expressed in "A Matter of Principle" and "Law's Empire" was the correct view. My views shifted as a result of two independent developments. First, my investigations of Paul Grice's work in the philosophy of language opened the door to the possibility that "original meaning" could be cashed out as "conventional semantic meaning." Second, originalist theory began to move in the direction of "original public meaning"--especially in the work of Keith Whittington and Randy Barnett. These two developments converge--because "original public meaning," it seems to me, is best understood as expressing the same idea as "conventional semantic meaning."
There are, however, slight differences between myself, Barnett, Whittington, and other theorists who are in broad agreement on the view that some version of "original public meaning originalism" offers the true, correct, or best account of constitutional interpretation. I haven't really thought deeply about the question whether differences in theoretical formulation at the level of detail would affect the legitimacy of constitutional practice, but my initial instinct is that minor theoretical differences would are unlikely to be "legitimacy destroying" or "legitimacy conferring". It seems more reasonable to believe that any member of the family of theories that embrace the core of "original meaning originalism" could provide the basis for a legitimate practice of constitutional interpretation and construction.
It is possible, of course, that my views on this question are idiosyncratic. Perhaps Barnett believes that only his particular version of original meaning originalism is legitimate and that Whittington's version, although very similar, is completely illegitimate; perhaps Whittington feels the same way. (Let me add, this seems unlikely.) But what is clear to me is that Colby and Smith have failed to consider the alternative views that originalist might hold and have failed to aim their argument at the strongest (as opposed to the weakest) of those views.
Another aspect of Colby and Smith's argument deserves discussion. Consider this passage, which follows the immediately prior block quote from their paper:
At the very least, this reality should put an end to the ubiquitous argument that originalism must prevail because (1) it takes a theory to beat a theory, and (2) after decades of trying, the non-originalists have been unable to agree upon an alternative.197 That argument is nothing but semantic tomfoolery; it carries no weight, and it should be afforded none. In fact, it never made any sense to begin with. One could easily make the same argument about any method of constitutional interpretation. It would be just as compelling to argue that common-law constitutionalism,198 for example, must prevail because all of the many “non-common-lawists”—including the diverse adherents to the various schools of originalism, along with a great many non-originalists of various stripes—are unable to agree upon an alternative. Indeed, one could come up with an entirely new (and entirely inane) theory of constitutional interpretation—say, that the Constitution should be interpreted by flipping a coin or by reading the stars—and then argue just as convincingly that that theory must prevail on the ground that (1) it takes a theory to beat a theory, and (2) all of the “non-coin-flippers” or the “non-astrologers”—from original-intent originalists, to common-law constitutionalists, to original, objective-public-meaning textualists, to believers in “constitutional moments”199—cannot even begin to agree on the proper alternative.
On the one hand, there is an aspect of Colby and Smith's argument that seems absolutely right. It only takes a better theory to beat a theory. It doesn't take a better theory upon which everyone agrees. But is the latter what Scalia argued? Here is the famous passage from Scalia's essay:
[T]he central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned.
Can we give this passage a more charitable interpretation than do Colby and Smith? Consider the following passage, in which Scalia elaborates:
Now the main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely. Nonoriginalism, which under one or another formulation invokes “fundamental values” as the touchstone of constitutionality, plays precisely to this weakness. It is very difficult for a person to discern a difference between those political values that he personally thinks most important, and those political values that are “fundamental to our society.” Thus, by the adoption of such a criterion judicial personalization of the law is enormously facilitated. (One might reduce this danger by insisting that the new “fundamental values” invoked to replace original meaning be clearly and objectively manifested in the laws of the society. But among all the varying tests suggested by nonoriginalist theoreticians, I am unaware that that one ever appears. Most if not all nonoriginalists, for example, would strike down the death penalty, though it continues to be widely adopted in both state and federal legislation.)
What light does this passage shed on Scalia’s argument? First, it clarifies that by “nonoriginalism,” Scalia actually means to refer to theories of interpretation that focus on those values that are fundamental to our society. Second, what Scalia claims is impossible seems to be discernment of the difference between those values that are fundamental to our society and those values that the individual (e.g., the judge or other official interpreting the Constitution) believes are fundamental. These two points suggest a reconstruction of Scalia’s claim. Given the fundamental values approach, it is difficult for individuals to discern the difference between their own values and the values that are fundamental to our society. Some individuals will succeed, but others will fail. Given that some will fail and given the fact of pluralism (that there are a plurality of views about which values are fundamental), no consensus on the content of the values that are fundamental to our society can emerge. Therefore, it is impossible for adherents to a fundamental values approach to reach agreement on what the Constitution means.
Perhaps, my possible reconstruction of Scalia's argument is not correct. My point is that Colby and Smith do not seem to have considered alternative interpretations of Scalia's argument, to determine which of these is the strongest version, and then produced arguments against that version. (And I am not endorsing Scalia's argument--its ultimate merits are not the point on this occasion.)
Let me end these comments by backing up and looking at the big picture. It seems to me that Colby and Smith's article poses two fundamental challenges to originalism. First, they challenge originalists to answer the question, "Does contemporary originalism have any core content?" If this answer to this question is "no," then the utility of the term "originalism' is unclear, and at a minimum originalists might be obliged to clearly state that "originalism" is a family resemblence term & then to use labels that identify the particular form of originalism they endorse. Second, Colby and Smith pose a more particular problem: does the dramatic shift from "original intentions originalism" to "original meaning originalism" create an insurmountable problem for any attempt to answer the first challenge?
It seems relatively clear that originalists have an answer to both challenges. Here is the way I would express the originalist reply to the first challenge:
The core commitment of originalism is the thesis that the semantic content of the Constitution was fixed by the relevant facts at the time each provision (the Constitution of 1789 and the amendments) was ratified.
That is, the semantic content of the provisions of the Constitution of 1789 was fixed in 1789. This content (as specified by some originalist theory) is what can be called the "original meaning," where that phrase is used in a technical sense as specified. (By the way, the fact that content was fixed by 1789 does not entail that events after 1789 are not evidence of that content.)
Original public meaning originalism holds that the relevant facts concern "conventional semantic meaning" or "original public meaning" of the words and phrases of the Constitution. Original intentions originalism held that the relevant facts concerned specified mental states (intentions) of either the framers or ratifiers. On this view, both kinds of originalists agree that it is "original meaning" that provides the semantic content of the Constitution, and they agree that the relevant facts were fixed at the time each provision was drafted and ratified. It seems to me that this is an adequate reply to the second challenge--it explains how both original-public-meaning originalists and original-intentions originalists agree on something that can be meaninfully identified as the core of originalism, despite their substantial disagreement about what is clearly a crucial and important issue.
What then is "nonoriginalism"? On my account, there can be a variety of nonoriginalist positions. Some nonoriginalists might assert skepticism about semantic content in general. Others might acknowledge that many texts have semantic content, but argue that they Constitution of the United States lacks such content. Yet others might contend that the semantic content was not fixed by facts in existence at time of drafting and ratification, but can be changed by subsequent events. Still other nonoriginalists may argue that even if the Constitution's semantic content is fixed by facts at time of drafting and ratification, constitutional practice is not bound by that content and rules of constitutional law that are inconsistent with the original meaning can legitimately be drawn from other sources, e.g. from the decisions of the Supreme Court or from the beliefs of the Justices of the Supreme Court about the right and the good.
What then can we say about the "it takes a theory to beat a theory" argument? In my opinion, that argument is almost always a conversation starter and almost never a conversation stopper. The conversation that it starts in constitutional theory has at least two aspects that are worth observing on this occasion. The first aspect concerns the question whether originalists have been able to reach a working consensus on the "original intent" versus "original meaning" debate. My sense of the state of play is that the intent-meaning debate is not yet over, but that the defenders of intentionalism (such as my friend and esteemed colleague Larry Alexander) represent a minority viewpoint, which dissents from a growing consensus on the family of theories that focus on original public meaning. The second aspect concerns the question whether nonoriginalists have been able to offer an account as to how stable, certain, and predictable rules of constitutional law can emerge from nonoriginalist theories (which lack "original meaning" as a focal point for agreement). Some variants of nonoriginalism seem likely to meet this challenge: for example, the view that the Supreme Court should consider itself bound by its own prior decisions. Other variants of nonoriginalism seem likely to run into more difficulty: for example, it is not clear that any theory that allows direct resort to officials' own beliefs about the good and the right can meet the challenge given what John Rawls called "the fact of pluralism." But I meant what I said. I see these observatons as opening up
Read Colby and Smith's article, which is "highly recommended."
