Justifying Originalism

A couple of weeks ago, Randy Barnett (Georgetown) was in town and gave an illuminating, synoptic presentation about the "new originalism," of which he is one of the leading proponents.  I have written before about the peculiarity that originalism is so widely embraced, notwithstanding the absence of a theoretical justification for its authority.  That charge is misplaced against Barnett, since his theory--as set out, e.g., in his 2004 book Restoring the Lost Constitution--has the correct theoretical structure any credible account of constitutional interpretation should have (yet, remarkably, a structure most of them don't even acknowledge as required!).  So, from a philosophical point of view, this makes Barnett's contribution to the debate of particular interest.  Before turning to what I learned from Barnett's presentation, let me set the stage for the general problem.

When it comes to constitutional interpretation in the United States, certainly at the highest appellate levels (where precedent imposes the least constraint), there is no convergent practice of behavior by judges:  they tend towards opportunism (a point famously captured in my colleague Philip Bobbitt's 1982 book on Constitutional Fate, though that was not his primary aim).  Sometimes they will appeal to original intent, sometimes to original meaning, sometimes to structural considerations, sometimes to plain meaning, sometimes to animating moral principles, and so on. 

There is, then, often no legal obligation to read the Constitution one way rather than another in the U.S.  A defense of originalism is, then, in the American context necessarily a theory about what judges (morally) ought to do, and, as such, it must be grounded in some broadly moral considerations.  The most pertinent of these, within the liberal political framework that I will take for granted here, will be those that bear on the question when courts are justified in exercising authority over individuals or when they are justified in bringing the coercive power of the state to bear against individuals.  (Dworkin, of course, thinks this last question is decisive about the nature of law, but he is mistaken about that for reasons we do not need to belabor here.)  For purposes here, I'm going to treat the two questions as interchangeable.  (Maybe there is a reason I shouldn't?) 

I'm not going to pretend that I can give an accurate summary of Barnett's overview of the literature; to the extent I get things right, readers may assume I recorded Barnett's comments correctly, otherwise not.

The "old" originalism (of the 1980s) treated the original intention of the framers/ratifiers of the Constitution as authoritative.  This "old originalism" was subjected to three objections (only one of which pertained to the key moral question, namely, about the authority of the original intent):

According to what I will call the "M&E Objection," there either does not exist a collective intention of the requisite kind or we have no reliable method for acquiring knowledge of such an intention.

According to the "Self-Contradiction Objection," the original intent of the framers/ratifiers was that their original intent about the Constitution should not be controlling; ergo, anyone who assumes original intent is authoritative has a reason not to consider original intent in interpreting the Constitution.  (Jeff Powell [Duke] supplied the argument, in a 1985 Harvard Law Review article, that the framers did not intent the original content to control.)

According to what Barnett called the "Dead Hand Objection," why should the intentions of long-dead ancestors bind us?

These three objections, correctly I would venture, buried the "old originalism." 

The New Originalism--first articulated by Justice Scalia, and defended most importantly by Barnett and Keith Whittington (Princeton, Politics Dept.)--claims that what is binding is the original public meaning of the text of the Constitution at the time of adoption (or at the time of amendment).   This new approach defeats the first two objections:  the Self-Contradiction Objection quite obviously so; the M&E Objection, because (as both Barnett and Whittington plausibly argue), the original public meaning is in many cases both determinate and knowable.  To be sure, original public meaning runs out, at which point judges must engage in "construction" (Whittington's term) of the Constitution, but in a way that does not contradict original public meaning.

That leaves, of course, the "Dead Hand Objection," which is (as Barnett acknowledges) the central objection to an originalist theory.  A theory of (as Barnett puts it) "constitutional legitimacy" is a constraint on any theory of constitutional interpretation:  the constitution must be interpreted in such a way that the state may legitimately exercise coercive power over people on that basis.  Barnett, as is well-known, thinks that the constitution is legitimate insofar as it comports with a certain kind of rights-based view of justice that is more-or-less libertarian in character.  The New Originalism is then justified on the grounds that the original public meaning of the U.S. constitution embodies that view of justice. 

That would, of course, make the argument for the New Originalism (non-pejoratively) parochial, i.e., contingent on the content of any particular constitution.  (Cass Sunstein [Chicago], I take it, exploits that fact in his recent intervention into this debate.)  But that is not quite Barnett's conclusion, as he made clear when I posed this worry to him.  He also thinks that the writtenness of the Constitution is a fact supporting the New Originalism, becaue the original public meaning as written is something that binds those who make laws that, in turn, purport to bind us as citizens.  At this point, I confess I don't follow the arguments.  If "constitutional legitimacy" in Barnett's terms (or "authority" in Razian terms) is the benchmark for the method of interpretation we should apply to a text, then I can not see how the writtenness of the text figures as an independent consideration.

Indeed, it seems to me a stronger conclusion is suggested:  namely, that once we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original "public" meaning, and so on) drops almost entirely out of the picture:  the theory of constitutional legitimacy tells judges how they should decide cases, and the written constitution is, at best, a proxy for what is constitutionally legitimate or is relevant because of its effect on the reasonable expectations of citizens (the latter being a factor bearing on constitutional legitimacy).  In other words, Barnett's theory of constitutional interpretation, because it (unlike most theories--Ackerman's, Amar's, etc.) has the correct moral structure is not really a defense of originalism, but a defense of whatever method of interpretation produces "legitimate" (i.e., morally authoritative) outcomes.   The writtenness of the constitution, and its original meaing, might, indeed, figure at this point, but only in the way that Raz (who, in an odd way, echoes Posner) suggests:  namely, because some moral value (some moral value that bears on authority) attaches to the fact that some understanding of the constitution (original or otherwise) has been stable, relied upon, figures in the public understanding of the society in which people plan their lives, etc. 

I have invited Professor Barnett to comment on these issues, and I hope he will do so.  A note, also, for those new to this blog about commenting:  signed comments are preferred, but signed or otherwise, all comments are reviewed for substance, and only those that make an intellectual contribution are approved.  Post only once; comments may take awhile to appear.

UPDATE:  Professor Barnett's detailed reply is here.  I shall let commenters discuss this for a bit, before trying to put together my own thoughts in response.

ANOTHER:  Larry Solum (Illinois) has a long post on the subject du jour here.  I had thought it obvious that the post above presupposed legal positivism, and thus presupposed that if there were a legal obligation to employ a particular method of constitutional interpretation it could only be because of the actual practice of officials constituting the social rule that is the Rule of Recognition in the American legal system.  (In principle, there could be a legal obligation to employ a particular interpretive method because such a method is required by a properly sourced norm, but there is no such authoritative source in the American context:  the Constitution, e.g., is silent on how it is to be interpreted.)  But Solum's comments, as well as some of the discussion in the comments here, make clear that it wasn't obvious!

ONE MORE:  This is useful by way of reply to Solum.