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Wednesday, September 21, 2005

Amar on Slate on Originalism

Akhil Amar joins in Slate's ongoing discussion of originalism and constitutional interpretation.  Regular readers will know that I've been tracking this series.

Amar argues that liberals do a disservice to themselves and to the Constitution when they proclaim that originalism is for conservatives. 

He makes two major moves.  First, as he puts it, "text without context is empty," and argues that originalism is the most legitimate method of interpretation.  Second, he reminds us that liberals can win the originalist debate too.  That is, you can be a liberal and also an originalist.  (Along the way he also takes Jack Balkin's position on the matter head on.)

I mostly agree with Amar, but I do have two thoughts. 

It is a sneaky move to argue that originalism is both more legitimate philosophically and also practically consistent with the liberal agenda.  That wraps up the bow a little too neatly.  Which is it: are we to be originalists because it is a more legitimate and cohesive interpretive technique, or because it gets us the results we want?  The real test is when our principles conflict with our practical political preferences, as they inevitably do.

Second, what is often missing from the debate about constitutional interpretation and change is missing from Amar's post as well (though I realize that this is just one post on Slate): any real discussion of the mechanism by which we can most legitimately change the meaning of the Constitution, namely the amendment process, and how that plays into the debate.  In my view, leaving constitutional change to the Court takes too much of the burden off of The People.

Full Disclosure: Amar was my Con Law professor.

UPDATE: As has been mentioned previously, prawfsblawg will soon be holding a group discussion of Amar's new book, and we hope that Professor Amar will participate as well.

Posted by Hillel Levin on September 21, 2005 at 02:34 PM in Hillel Levin | Permalink


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Hillel -
Actually, that part of my criticism wasn't supposed to be a straw man of Amar's argument, but rather, a criticism of original intent as a theory. That theory, in my view, is utterly discredited and entirely unworkable, and had been so rendered more than twenty years ago. The main thrust of my criticism was actually people using the term "original intent" when they mean to refer to originalism as a family of views, especially when it is used duplicitously, as I described.

Intent, so far as it can be determined, and thus inquiry into it, is valuable insofar as members of learned society generally do not use words that are entirely inapposite to their intentions, particularly lawyers, as most of the Framers men. But again, it is the words, not the intentions, that are binding, in constitutional interpretation as in statutory construction. I don't agree that the line between the two is not clear, or at least, if I agree, I don't think of it in that way. The reason the Federalist Papers are valuable is not because they reveal anything in particular about the intentions of Hamilton (who was absent for most of the convention), Madison (who was frustrated in much of his original intent) and Jay (who wasn't even there), but because of the light they shed on the meaning of the words at the time, the context, if you will, which is entirely valid. For this reason, the Federalist Papers are no more or less valuable as indicia of the original meaning than are the Anti-Federalist essays.

So I'm not sure if this is a concurrence or a dissent, as far as either you or Prof. Amar are concerned, but either way, it's respectfully so. ;)

Posted by: Simon | Sep 21, 2005 5:59:54 PM

Addenda:It is a sneaky move to argue that originalism is both more legitimate philosophically and also practically consistent with the liberal agendaI agree with this, too. Originalism does not inherently favor anyone's agenda. It does, for the most part, oppose big, invasive government, insofar as big, invasive government was precisely what the constitution aimed to prevent, it seems to me. On the other hand, originalism does not offer much to people who want to use the courts to drive forward a rights-oriented social policy agenda. For that reason, I would argue that originalism actually works against BOTH the democratic party agenda AND the current GOP agenda, albeit in different ways and for different reasons.

Also, I think Amar missed an opportunity to point something else out. It's true that sometimes originalists set aside the strictures of the theory because they cannot stomach the result it would mandate. This is no more a criticism of originalism as a theory than Jesse Jackson or Pat Robertson constitute a criticism of Christianity. And it's also true that sometimes good originalists produce bad originalism. But on top of that, I think it's also worth noting that not only is originalism not conducive to being results-oriented, but it frequently produces results that originalists do not like. There are plenty of results that I'd love to reach that the original understanding of the constitution simply will not reach. There is no right to an abortion in the constitution - but neither, so far as I can find, is there a "right to life", or a power for the federal government to legislate on the subject. You could make the argument that you have to be born to participate in interstate commerce, but that's not going to fly, even though it's no more absurd than many liberal-friendly decisions. I suspect that, in time, as they lose control of the courts, and maybe regain control of Congress, a lot of liberals will rethink whether they want the courts to play the role they have liked them to play in recent years.

Posted by: Simon | Sep 21, 2005 5:48:07 PM


Your criticism of Amar is unwarranted. You have distorted his version of originalism, what might be called contextualism, by referring to it as "collective intent on the part of the framers." It does not seem to me that he is a proponent of strict "original meaningism" as you seem to be; but nor is he a proponent of strict "original intent," as you claim he is.

Further, the lines between those two are not always clear. Surely the public understood the text by reference to arguments made by the framers. The widely-distributed and debated "Federalist Papers" therefore can tell us much about the public meaning, since they inform us as to what people *thought* they were voting for.

Posted by: Hillel Levin | Sep 21, 2005 5:33:38 PM

It irritates me when folks writing to criticize originalism use "original intent" as a cunning subterfuge to make arguments that are valid against original intent stick to other forms of originalism where they would otherwise have less (or no) traction. See comments here and at Althouse. It therefore mystifies me why someone who is prima facie arguing in favor of originalism would use the same terminology, as Amar does throughout this article. Or perhaps Amar really does believe that some nebulous and entirely speculative collective intent on the part of the framers should govern, rather than the original public meaning of the words in which they chose to couch their views. Cf. comments, Volokh, 11/15/05 - 11/16/05.

However, despite these reservations, I'm pleased to see a credible liberal making what seems to me (an often incredulous Republican) to be the obvious argument. Originalism is not simply a conservative codeword, even if it is frequently used as such by people who never saw a means they didn't like to an end they wanted (much of the current GOP agenda being hard to reconcile against the original understanding of the constitution; hence "often incredulous", and indeed, frequently faintly embarassed these days).

I have several disagreements with Prof. Amar, but - unlike Balkin's poisonous propaganda piece - his article is thoughtful, reasonable and coherent.

Posted by: Simon | Sep 21, 2005 5:26:54 PM

Paul: You could read Amar's argument that way, but then you have to demand a great deal more evidence. We can make a great argument that Brown was rightly decided from an originalist perspective; but what about all of the other positions that "living constitutionalists" want to read into the constitution, but that can't really be considered "originalism"--unless you make "originalism" to be completely devoid of meaning?

I don't know what to make of the consequentialist argument here. I don't understand Amar to have unstated consequentialist motives behind his commitment to contextualism. I think he just believes, and reasonably so, that this is the most legitimate way to interpret a text that is a product of, and guide for, a democratic society.

Posted by: Hillel Levin | Sep 21, 2005 4:56:36 PM

Can't Amar's argument be read more modestly? "For the most part, the ends and the means don't conflict?"

Also, what if your non-consequentialist commitment to originalism is itself something that is created on consequentialist grounds? Uh, that's a little bizarre, but think of the L&E bugbear "a taste for justice." Why can't one's essential committment to originalism come about because one gets positive utility from thinking of oneself as a principled person? And then if one gets more positive utility from thinking of oneself as an egalitarian person in any particular case, well...

(at this point, I'm just playing devil's advocate, I certainly don't believe that extreme consequentialist stuff...)

Posted by: Paul Gowder | Sep 21, 2005 4:26:52 PM

Paul: No, because inevitably they will conflict on some important issue or another. Further, it should not matter what the consequences of adopting an originalist view are if you are committed, as I father Amar is, to originalism on what I've been calling "philosophical" (i.e. expressly non-consequentialist) grounds.

Posted by: Hillel Levin | Sep 21, 2005 3:36:30 PM

Point taken... but can't Amar fairly argue "actually, the ends and the means don't conflict, so your question is unnecessary?"

Posted by: Paul Gowder | Sep 21, 2005 3:29:32 PM

Personally, I'm not much of a consequentialist. But I can understand why someone would be. But Paul, I think you missed my point (or I wasn't clear--I'm not laying the blame on you). In *this* case, the proponent wants it both ways: originalism is better because it is fundamentally the only way to interpret a document, and it is better because it achieves what we want. Once again, what about when the ends and the means are in conflict?

Posted by: Hillel Levin | Sep 21, 2005 3:16:55 PM

Incidentally, has anyone ever established that constitutional consequentialism is a bad thing? Hillel, you say "[t]he real test is when our principles conflict with our practical political preferences, as they inevitably do." But doesn't that assume that our practical political preferences aren't themselves principled?

If I say "I endorse the principle of egalitarianism, and intend to use any power that society confers on me accordingly" how is that somehow morally deficient as compared to "I endorse the principle of obeying the constitution, and intend to use any power that society confers on me accordingly?"

Posted by: Paul Gowder | Sep 21, 2005 3:11:45 PM

Ethan: Your points are well taken. However, I do not see how consequentialism can co-exist with an overarching philosophical belief (which I think he has) that originalism (or more specifically, contextualism) is the most and only legitimate form of interpretation.

As I said, the test is when the two collide; and too many originalists (on both sides) carefully avoid those hard questions.

Posted by: Hillel Levin | Sep 21, 2005 3:05:25 PM

I'll have to leave the change question to one side, since that seems to go well beyond Amar's post. But on your first comment, I think he was more or less clear: he thinks textualism without contextualism (a form of originalism) is not just illegitimate; it is plainly an impossible task. As for his attempt to prove that we can imagine a liberal originalism, I don't think he was saying that that is an affirmative reason to embrace it. He was arguing, I thought, that just because the most outspoken defenders of the methodology are conservative doesn't mean it always produces conservative outcomes. He was saying that even if you are a constitutional consequentialist--someone who embraces a methodology only because it produces results you like--you shouldn't dispense with originalism. Indeed, I don't think he would disagree with you that constitutional consequentialism is a vice to be avoided.

Posted by: Ethan Leib | Sep 21, 2005 2:58:27 PM

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