This is the eighth of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to consider a few of the objections to the Constraint Principle. Many of the ideas in the series are presented in greater depth in:
For a very short statement of the case for originalism, see:
This post addresses the following questions:
- How can originalists reply to the "dead hand" objection?
- Is originalism inconsistent with one or more of the "canonical cases," and if so, what can originalists say about that?
- Do the antidemocratic features of the framing and ratification process render the Constitution illegitimate?
- Is compliance with the constraint principle impossible? And even if it is possible, is "originalism" simply a mask for nonoriginalist ideological judging?
- Is originalism tilted against progressivism? And if so, is that a good reason for progressives to reject originalism?
The other posts in this series so far are as follows:
The post continues after the break.
One common objection to originalism relies on the idea that originalism commits us to rule by a "dead hand." I believe that two different points are made in the guise of the dead hand objection. The first point concerns the legitimacy of a written constitution that was not ratified by a majority of living citizens. The second point is about the out-of-date content of an old constitution that is not easily amended.
Consider the first point. Is our constitution illegitimate because it was not ratified by a majority of living citizens? This objection raises deep questions, but in the context of contemporary constitutional practice, this objection is unlikely to be taken seriously. Every written constitution faces this problem; even if the United States Constitution had been framed and ratified in 1980, it would now be "out of date" by this criterion. Moreover, this objection applies to living constitutionalism. The Supreme Court's authority derives from an "out of date" constitution, and hence is also illegitimate.
The second point is different. The argument is that the actual content of the Constitution is so antiquated that judicial updating is a practical necessity. Of course, if this argument were actually correct, then it should be possible to amend the Constitution to provide the necessary adjustments. The reply to this argument is that constitutional amendments are too difficult, but this reply assumes that there would be substantial political resistance to these amendments--undermining the case that there is a social consensus that the amendments are a true practical necessity. And this point about political disagreement is important. The truth is that many of the constitutional revisions produced by nonoriginalist living constitutionalism are controversial, because the United States is a pluralist society characterized by substantial disagreements on a variety of matters.
The most compelling case for the second version of the dead hand argument concerns the rise of administrative agencies. If we assume that the delegation of legislative and judicial power to these agencies is unconstitutional, an argument could be made that restoration of the original meaning of the constitution is simply impracticable--because government by administrative agency is required given the complex nature of our economy. Assessing this objection requires the evaluation of a very complicated counterfactual: what would happen if the original meaning were gradually restored. In a blog post, that question cannot be given a satisfactory answer--either way. My opinion is that if the empirical assumptions of the objection are correct, the constitution would be amended in due course.
Is originalism inconsistent with one or more of the "canonical cases," and if so, what can originalists say about that?
Another common objection to originalism is based on the premise that one or more of the canonical cases would not have been decided the same way if originalism had guided the Supreme Court. The two cases that are most commonly invoked are Marbury v. Madison and Brown v. Board of Education. In both cases, the premise is false--certainly false in the case of Marbury and very likely false in the case of Brown.
In my opinion, it is now beyond doubt that the so-called power of judicial review is consistent with the original public meaning of "the judicial power" and "a Supreme Court." The work of William Treanor has established the historical foundations of this conclusion. Philip Hamburger's monograph, Law and Judicial Duty, illuminates the way in which progressive scholarship that reconceptualized the duty to apply the law as a power of judicial review led to serious misunderstandings of the nature of the reasoning in Marbury.
In the case of Brown v. Board of Education, the key work is Michael McConnell's magisterial article, Originalism and the Desegregation Decisions. More recent evidence is summarized in a blog post entitled The Growing Originalist Case for Brown v. Board of Education by Michael Rappaport. Moreover, a strong argument can be made that the constitutional foundation for segregation, Plessy v. Ferguson, would have come out the other way if the original meaning of the Privileges or Immunities Clause had not been nullified by the Supreme Court's decisions in The Slaughter House Case and Cruikshank.
In addition, nonoriginalist living constitutionalism does not guarantee the outcomes in the so-called canonical cases. Constitutional Eclecticism could have resulted in the result opposite to that actually reached in both Brown and Marbury. Common law constitutionalism is especially vulnerable to the canonical cases objection in the case of Brown--since the Brown opinion rejected a case-by-case common law approach to the longstanding precedent of Plessy v. Ferguson.
Do the antidemocratic features of the framing and ratification process render the Constitution illegitimate?
Another objection to originalism rests on the grave political injustices that characterized the framing and ratification process. Women, slaves, and Native Americans were excluded from the constitutional convention and from voting for the delegates to the ratifying conventions. This argument leads to the same conclusion as the first variation on the dead hand objection: such exclusion renders the Constitution illegitimate. Therefore, the Constitution should not constrain us today.
The logical implications of this argument are very radical indeed. The Constitution is not the only thing that is illegitimate if this argument is correct. The Supreme Court, Congress, and the Presidency are all creates for the Constitution are lack legitimate foundations as well. Moreover, it is not clear that a constitution written and ratified today by those currently eligible to vote would be legitimate. The disenfranchisement of felons and both documented and undocumented noncitizens arguably would render even a contemporary constitution illegitimate.
Moreover, it is not clear how this argument can work to justify the constitutional status quo--Constitutional Eclecticism. Giving a committee of nine the power to make constitutional law does not fare very well by standards of inclusion. The Supreme Court has only one Latina and one black man. It has no black women, no Latino men, no Asians, only one protestant, no openly gay, lesbian, trans, or bisexual members, no former felons, and no undocumented persons.
Moreover, it is hardly clear that excluded groups benefit from the erosion of the rule of law. Unconstrained judging is a two-edged sword--and it can and has been wielded against excluded groups in the past.
Is compliance with the constraint principle impossible? And even if it is possible, is "originalism" simply a mask for nonoriginalist ideological judging?
This is an important question, but it is not an objection to originalism as a theory of constitutional interpretation and construction. Nonoriginalist ideological judging is not originalism. Originalists as a theory criticizes judges who mask their ideological biases in originalist rhetoric. From an originalist perspective, fake originalism is the worst of all possible worlds.
Is originalism tilted against progressivism? And if so, is that a good reason for progressives to reject originalism?
Again, this is an important question. Unfortunately, it is difficult to answer the first part of the question in a blog post. It is not yet clear what a thoroughly originalist constitutional jurisprudence would look like. Because of the historical origins of originalism in criticisms of the extended Warren-Burger Court, many of the issues raised by applied originalist scholars do have a conservative or libertarian valence. Because of the neglect of originalism by progressive scholars, many of the provisions of the Constitution that have progressive potential have been ignored. My sense that is that big picture is a mixed bag, but it seems unlikely that a thoroughly originalist jurisprudence should be a "deal breaker" for progressives. That might instead adopt a "wait and see" attitude--postponing final judgment on originalism until the evidence was in.