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Monday, July 14, 2008

Piety vs. Originalism

Nate Oman has a nice post at CoOp talking about originalism and the "virtue of constitutional piety."  Referring to a recent address by Larry Kramer in which Kramer denies that he is an originalist "if by originalist you mean that we should do something just because that is what the founders said or intended," Nate says that Kramer is responding to "a straw man in so far as judicial or academic originalists are concerned," but thinks that there might be something to be said in defense of this kind of piety, in the broader context of "popular originalism."  He adds:

If we want the constitution to act as a real bulwark against this or that popular whim, then it seems to me that it needs something of the mysterium tremendum, a sense of the sacred that ought not to be profaned by transgression. I don't see that constitutional theory has much to offer in terms of maintaining that popular awe. . . . Hence, it seems to me that there is a case to be made for doing at least some things simply because they were done by the Founders, if only to preserve the awe felt by candidates for city dog catcher toward the Founders and the institutions about which law professors spin their impious theories.

Nate's commenters almost immediately respond by talking about originalism as an interpretive method.  That seems to me to miss the point.  Although he does try to distinguish this from constitutional piety in his first paragraph, I do think these comments echo my own first reaction to Nate's post: that it tends somewhat to conflate the question of respect for the framers with the question of originalism as an interpretive method.  So let's be clear:  There is a world of difference between constitutional piety -- that is, an approach or attitude to constitutional interpretation based on respect for the framers -- and the current judicial/academic version of originalism as an interpretive method.  For one thing, originalism is not based on respect for the framers as such; instead, it's grounded in a different set of arguments, usually centered around contractarianism, or legitimacy, or arguments about what constitutes a valid approach to legal interpretation.  Second, originalism no longer focuses on the original intent of the framers or anything like it; rather, as Heller reminds us, it focuses on the original public meaning of the constitutional text. 

Thus, one could think that the framers were jackasses or knaves (or, say, slaveholders), but still believe that originalism is the only valid method of constitutional interpretation.  Conversely, one could have a very high regard for the framers, and incorporate this regard into one's interpretive approach, without necessarily being an originalist.  Although I do not "worship" the framers, for reasons I expand on below, my own interpretive approach is firmly rooted in great respect for them, and yet is not originalist in any thorough-going way.  Originalism, in short, is not and need not be "ancestor worship" -- and vice versa.

By way of a more direct response to Nate, let me say that I'm not opposed to maintaining some sense of the "mysterium tremendum" with respect to the framers, whether as a matter of "popular originalism" or otherwise.  I do think that a far more fruitful way to think about these issues is not in terms of piety toward the framers.  Instead, we should think in terms of recapturing and thinking hard about the kinds of background virtues that animated the founding generation, and thinking about the ways in which we can rededicate ourselves to them, while surely repurposing them somewhat, in the modern era.  I explore these themes in this short piece.  But however you characterize this approach, one should make clear that there is a crucial difference between an acceptable level of filio-piety and a permanent sort of self-infantilization.  The framers are worthy models in many senses.  But if we are to prove ourselves their inheritors rather than mere idol-worshippers, if we are to embody the framers' virtues rather than merely parroting them, we shouldn't become so overawed that we are unable to reason for ourselves and take responsibility for our own decisions. 

For those interested in these issues, let me recommend a lovely piece by Mike Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Georgetown Law Journal 1765 (1997), and the responses thereto.  My review essay, The Past, Tense: The History of Crisis -- and the Crisis of History -- in Constitutional Theory, 61 Alb. L. Rev. 459 (1997), also deals with these issues; it should be available via Google Scholar as well as via the online research databases.

Posted by Paul Horwitz on July 14, 2008 at 05:21 PM | Permalink


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Well said.

Posted by: Patrick S. O'Donnell | Jul 14, 2008 7:57:36 PM

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