It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?
This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because we disagree politically about the particular results of using one methodology versus another.
The Article contends that methods of interpretation must be defended by reference to accounts of constitutional authority. It takes as its case in point the family of interpretive approaches known as originalism, which favors the resolution of constitutional issues according to a meaning fixed at the Framing. Originalism is an apt case study because it currently is ascendant in both academic theory and judicial practice and, not incidentally, because it often is suspected of being a cover for controversial political commitments.
The Article illustrates the relationship between interpretation and authority by assessing the “natural rights” defense of an originalist Constitution offered by the influential New Originalist Randy Barnett. Barnett’s account fails, the Article contends, because it cannot explain the authority of the Constitution it purports to justify. But its failure underscores the centrality of authority to methods of interpretation.
The Article then examines three general accounts of constitutional authority that might be thought to entail originalism. Accounts based on “consent” or “popular sovereignty,” while rhetorically appealing, lack any basis in the realities of modern society. Accounts based on what the Article terms “Moral Guidance” – the supposedly superior wisdom of the Framing process – are both descriptively implausible and conceptually problematic. Only accounts based on “Dispute Resolution,” such as the well-known “Footnote Four” approach from the Supreme Court’s Carolene Products decision, can overcome the fatal flaws of these other accounts. But Dispute Resolution can support only a selective, modest use of originalism.
Originalists, then, are left with a choice, the Article concludes. They can moderate their interpretive methodology as the Footnote Four approach suggests. Or they can insist on thoroughgoing originalism – with nothing to back it up but the bare desire for politically controversial results.
Highly recommended. This is an important critique of the New Originalism. Download it while its hot!