Legal Theory Blog: New Ideas About the New Originalism

I just got back from the conference on "New Ideas About the New Originalism" at Northwestern. There were some terrific papers, most of which will be forthcoming in the Northwestern University Law Review. The participants included Jack Balkin, Lynn Baker, Randy Barnett, David Barron, Steve Calabresi, Richard Kay, Andy Koppelman, Mike Paulsen, Jim Pfander, Michael Rappaport, Marty Redish, and Bill Treanor. John McGinnis did a magnificient job of putting the conference together.

I didn't blog the conference, but I thought I might offer the following fable, which captures some of my thoughts about the current state of constitutional theory and the role of new ideas about the new originalism:

The Grand Union of Constitutional Theorists is a debating society in continuous session with a membership that changes as the old boys are replaced by new gals and guys. A long long time ago, I cannot remember when, a question was put to the house:
Should we have a written constitution at all?
That question raised fundamental issues about dead hands, legitimacy, and democracy. But somewhere along the way a motion to table was made. “Oh no,” it was objected, “surely it should be referred to a committee of specialists.” The substitute motion was quickly passed and as a result debates on the floor start with the assumption that we are stuck with or blessed by or cursed by or constituted by or bound by the United States Constitution. The new questions before the house varied, but in one way or another they addressed what do with or about or to the Constitution.

That is not to say that the issues relevant to the fundamental debate did not manage to insert themselves in the deliberations. The occasional eccentric argued we would be better off without the Constitution. Now and again, someone points out that the Constitution that we’ve got has profoundly undemocratic features. And almost every day, someone makes a speech that invokes premises, which (if carried to their logical conclusions) would put tabled question back before the house.

The Grand Union of Constitutional Theory prides itself on its open membership policy. There are two doors to the union, and both admit any who pay the price of admission. One may pass through the first door in only three years—although the cost of a ticket is expressed in six digits. The second door takes five years to traverse, and you can write your own ticket (or “diss” as they say). But for a very long time, most of those who passed through the doors were of a certain stripe. The oldest old boys had been part of the making a new deal, and only on the very back benches were those few who refused to take the deal. Although there were doubts at first, almost every member of the Union took a ride on the Superchief—driving that train was Engineer Earl and the conductors and porters included the two Bills, Hugo, Felix, Potter, Wizzer, and even lonely John. The notion that there was trouble ahead and trouble behind for the Superchief crossed some minds, but most members of the Union wanted to discuss new and exciting destinations. A popular question before the Union was
How fast and how far can we go?
The old boys remember the days when the questions before the house almost always resulted in someone bringing up the "counter majoritarian difficulty." A footnote numbered four was mentioned in almost every speech. The working conditions of bakers become a fetish and the relationship of those conditions to the use of birth control by married couples an obsession. The old boys had protégés who mused about democracy and distrust and those who were puzzled about the persistence of process based theories of the constitution. Someone floated the idea that We the People had a constitutional moment during the new deal. It was even proposed that Hercules might construct a grand theory that would fit and justify not only the constitution, but life, the unvierse, and everything--or at least all of American law.

But as every member of the Union knows, protégés become old boys themselves, and sooner or later young Turks move from the back benches to the front of the house. The relationship between the decisions of the nine, not so old, men and women, and the agenda of the dominant political coalition was duly noted. Respect for the old boys was so great that some young Turks gravely intoned that the new debates were “post-counter-majoritarian,” but this phrase did not come trippingly off the tongue and was soon forgotten by many. New motions were put before the house:
Should the constitution be taken away from the courts and given to the people themselves?

Has the constitution been lost, and if so, should it be restored?

Should the Supreme Court take only one step at a time and look both ways before it crosses the road?
But we have left out an important part of the story. The Union is located high in an ivory tower, far from the hustle and bustle of ordinary politics. But there came a time when the quiet deliberations of the Union were interrupted by distant rumbles from a nearby strict construction zone. Noisy voices began to be heard from the far back benches. The members muttered among themselves, “interpretivism,” “textualism,” “unwritten constitution,” and from the back benches, first a whisper, then a steady drone, “originalism,” “original intentions of the framers,” and “original understandings of the ratifiers.” This was not good. It was not right. It must stop. We must fight. This originalism talk, it is misconceived. In original intentions, not even the framers believed. And for a while, the muttering died down.

But only for a while. For quite some time, the debates in the Union went on as if the Superchief was still being driven by Engineer Earl, but in fact, Earl was replaced by Warren and Warren replaced by William (not one of the two Bills who had by now both retired, along with Hugo, Felix, Potter, Wizzer, and lonely John). There was a whole new crew, Harry, Sandy, two Tonys, a John Paul, and later a David, a Clarence, a Stephen, and a Ruth, followed by Engineer John and Sam. One of the two Tony’s had once lived in an ivory tower and knew something about the debates in the Union. If we must choose between counter-majoritarian evils, he thought, let us choose the evil that is lesser—the original public meaning of the Constitution.

Meanwhile, a whole new flock of back benchers had taken up muttering again. They had their own club, with secret handshakes and nifty ties. “Original public meaning,” they chanted in annoying unison. At first, front benchers simply tuned them out, but after a while a question was put to the house:
Is the New Originalism just old wine in new bottles?
Speeches were made. “Still misconceived.” “Law office history.” “A front for the constitution-in-exile movement.” “It’s not originalism.” “It’s too radical.” “It’s trivial.”

But something was different. Something had changed. The new originalism was claimed to be an originalism for nonoriginalists. There was a lot of talk about the difference between construction and interpretation. Some of the new originalists weren’t members of the club with the secret handshakes. There was even a suggestion that the originalism debate was not actually a normative debate at all and the real controversy was about the meaning of the constitution.

One front bencher claimed that originalism was compatible with living constitutionalism. “He can't be serious.” “It's a trick.” "He's gone over to the dark side.” But the truth was that the new originalism was compatible with a lving constitutionalism that accepted the hard core of constitutional meaning.

Not so long ago, the meetings of the Grand Union were considered by many in the know to be somewhat boring. "Nothing new going on in there," said many of the cognoscenti, as they wandered to other chambers of the Ivory Tower. Even today, the most jaded members of the in crowd are reluctant to return, but if they were to pop in, they might be surprised.