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Tuesday, February 16, 2010

Does Originalism Follow from Our Commitment to a Written Constitution?

Arguments about the nature of judicial review and appropriate methods of judicial interpretation based on the “writtenness” of the Constitution date back at least to Marbury v. Madison. In recent years, originalists ranging from Jack Balkin to Keith Whittington to Randy Barnett have argued in varying fashion that an originalist interpretive approach follows logically from “our commitment to a written constitution.” Perhaps the most common (though not the strongest) version of this argument holds that only originalism is consistent with the primary purpose of written constitutions—namely to subject the power of judges and, through them, other government officials, to fixed constitutional constraints. The echo of Marbury should be obvious. There, Chief Justice Marshall asked, “[T]o what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?” Contemporary originalists ask, “To what purpose do we hold our government officials to written constitutional limitations, if the content of those limitations evolves over time according to the interpretations of the very officials intended to be restrained?”

This argument may or may not be persuasive on its own terms. There is no reason in principle that a written constitution should be any more or less flexible—any more or less constraining—than an unwritten constitution. That depends on the content of the constitution, as understood by contemporary interpreters, as well as the accepted modes of constitutional revision, neither of which is linked in any necessary way to the formal medium in which a constitution is expressed. But even if a written constitution, interpreted according to originalist methods, is an essential prerequisite for the existence of fixed constitutional constraints, it remains to be shown that fixed constitutional constraints are normatively preferable to the available alternatives.

Here the argument from writtenness runs into all the objections commonly advanced against the standard constraint-based defenses of originalism: Original meaning is frequently ambiguous, limiting its power to constrain judges and other officials, even if those officials are acting in good faith and free of subconscious bias—both, of course, generous assumptions. In fact, the history invoked in originalist opinions may give an insidious veneer of objectivity and passivity to judicial decisions that are in reality the product of political choices. More fundamentally, original meaning is hardly the only available constraint on official power. Judicial precedent, political process theories, or the Holmesian puke test might serve equally well, especially in light of the many institutional and political constraints that operate independently of any theory of constitutional interpretation. Finally, even if these alternatives prove less effective than originalism qua constraint, one or more of them might produce better substantive results, on balance, than unswerving adherence to original meaning.

For purposes of this post, I have no interest in passing judgment on these objections. The critics might be right. But original meaning also might be more determinate or more substantively attractive (compared to the plausible alternatives) than the critics of originalism have supposed. The important point is that everything turns on these questions and virtually nothing on the argument from writtenness. If original meaning is the most effective and substantively attractive constraint available, judges should interpret the constitutional text according to its original meaning to the extent possible. If not, they should employ whatever alternative approach satisfies this criterion. Writtenness is simply a nonfactor.

Posted by Andrew Coan on February 16, 2010 at 09:00 AM | Permalink


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I think that one has to be careful to distinguish originalism from originalism as practiced by Justice Scalia or any other judge who claims to practice originalism. I'd agree that originalism doesn't seem to constrain Scalia a great deal; take Heller, with the convenient exceptions for felons and really big guns, or Gonzales v. Raich, or his take on the Equal Protection Clause, which seems to me at least to stem far more from his own views on race than from anything John Bingham ever said. But it doesn't follow that originalism isn't a strong constraint if applied in good faith. For one thing, if you read Scalia's opinion in Raich, or the dicta in Heller about felons and other restrictions, or anything Scalia's written on the EPC, none of it actually purports to be originalist analysis. He doesn't give bad originalist arguments when he wants to reach a certain result; he doesn't give originalist arguments at all. So yes, it's true that Scalia departs from originalism when he wants to, but that doesn't show that one can make originalism say whatever one wants it to say.

Posted by: Asher Steinberg | Feb 17, 2010 8:45:10 PM

Originalism produces many results Scalia likes and a few he doesn't. If you keep the theory of interpretation constant but substitute Breyer's or Ginsburg's political preferences for Scalia's, the number of disagreeable results--and hence the degree of constraint--goes up. That seems like a straightforward application of the definition of constraint implicit in your own prior point that Scalia doesn't like some aspects of original meaning but follows them anyway.

My point about Breyer's deference was simply that his theory of interpretation leads him to defer to legislative judgments in many cases where he personally would reach different results. (Incidentally, I doubt there is a single justice for whom this is not true, making it interesting but beside the point for this discussion, that most of the current justices strike down statutes overall at roughly the same rate. Thanks, though, for directing me to your post.) If a judge of Scalia's political preferences followed Breyer's approach in good faith, he would presumably reach even more results contrary to his personal views.

This takes us back to my original point that all plausible theories of interpretation constrain. One measure of that is the one you suggested: whether Scalia's theory constrains Scalia or Breyer's theory constrains Breyer. But the converse question is at least as pertinent: would Breyer's theory constrain Scalia and would Scalia's theory constrain Breyer? If so, my original point holds, and we are back to the standard debate over the rule of law argument for originalism, with writtenness doing little or no work. In fact, I would argue that you and I have been having a version of that debate all along.

Thanks for a very stimulating discussion but this is going to have to be my last comment on this thread.

Posted by: Andrew Coan | Feb 17, 2010 12:42:06 PM


I'm curious, why do you believe that Ginsburg or Breyer would be more constrained by originalism if they "converted" to it than is Scalia? On what do you base that conclusion?

As for Breyer's rate of invalidation of legislative action, I am not sure how it is relevant. For that matter, I am not sure if the claim that he is the most (or one of the most) deferential is true. In my experience, that claim is typically based on the rate of invalidation of federal laws while somewhat curiously ignoring invalidation of state laws. When you combine the two (which I think makes the most sense) it's Rehnquist, not Breyer, who stands out as the most deferential among the Justices of the last 15 years. The rest of the Justices had a surprisingly similar invalidation rate. Details here.

Posted by: Orin Kerr | Feb 17, 2010 11:01:02 AM

Orin, I don't deny that originalism imposes some constraint on Scalia. Doubtless, it would impose even greater constraint on Breyer or Ginsburg if one of them were to convert. But the same is true of active liberty, which is basically a dressed up, slightly thicker version of representation reinforcement. It is no coincidence that Breyer is the most (or one of the most) deferential to legislative judgments among the current justices.

Posted by: Andrew Coan | Feb 17, 2010 7:34:34 AM


I disagree. Justice Scalia frequently reaches results that he expressly states he would not reach as a matter of policy or that it's pretty clear he doesn't like as a matter of policy, ranging from cases like Hamdi to flag burning to the confrontation clause cases to Blakley/Booker. What are the cases in which Justice Breyer applies the methodology of "Active Liberty" and feels compelled to reach a result he does not like?

As for your second point, I think it goes back to the uncertainty of which claim you have in mind that I raised at 7:22pm.

Posted by: Orin Kq | Feb 16, 2010 11:31:22 PM

I suspect active liberty (which includes important roles for text, precedent, history, etc.) constrains Justice Breyer about as much as originalism constrains Justices Scalia and Thomas. But I think the fact that we are arguing about this just underscores my point: the argument from writtenness (in its fixed constraints version) adds very little to standard rule of law defenses of originalism. If you are persuaded by those defenses, you are likely to be persuaded by the argument from writtenness; if not, not.

Posted by: Andrew Coan | Feb 16, 2010 10:50:39 PM

"The first is that all plausible theories constrain, so this argument doesn't get originalism very far at all."

I'm not sure I agree. Let's take Justice Breyer's theory of "Active Liberty." How does that constrain? It seems to me it lets Justice Breyer do whatever Justice Breyer thinks is a good idea. I suppose the problem is that the issue is degree of constraint. The argument from writtenness seems to assume that writtenness is not just a constraint, but a *serious* constraint. Even if you think all plausible theories constrain at least a teeny tiny bit, surely not all plausible theories constrain a lot.

Posted by: Orin Kerr | Feb 16, 2010 8:26:45 PM

There are a couple of problems here. The first is that all plausible theories constrain, so this argument doesn't get originalism very far at all. The second is that the reasons for writing a constitution in the first place and for keeping an old constitution around may be quite different. The first of these I address toward the end of this post; the second I'll be addressing in two future posts.

A final point worth noting: the argument from constraint is only one version of the argument from writtenness. There are at least two others, which I will also be addressing in future posts.

Posted by: Andrew Coan | Feb 16, 2010 7:54:20 PM

Oh, and just to clarify a bit, I take the originalist argument from writtenness to be something like this:

1) Constitutions are written in order to constrain future actors.
2) Originalism constrains future actors.
3) Therefore, the written constitution implies originalism.

The chief flaw in the argument is that originalism is not the only method that constrains future actors. Rather, it is a particular version of that constraint. But at the same time, that's not to say there is nothing to the argument: If you change 3 to be, "the written constitution suggests there needs to be a theory of interpretation that contrains actors, with originalism being such a theory," then I think the claim is on relatively strong ground.

Posted by: Orin Kerr | Feb 16, 2010 7:33:47 PM

Andrew, thanks for the response, but I'm not entirely sure I follow. It seems to be that there are two questions: 1) Is an important purpose of writing down the law to ensure that its meaning is more fixed and certain than it would be if it were unwritten? and 2) Does writing down the law imply that originalism is the proper method of interpreting that law? I don't think #2 is necessarily true, so if you're just criticizing #2, that's fair. But #1 seems pretty accurate to me: The process of writing a governing document in a group requires us to reach some amount of agreement as to what that document should say and then becomes the reference point as to what the rules are.

Posted by: Orin Kerr | Feb 16, 2010 7:22:16 PM

The point is not that constitutions should not be written; it is that there are many reasons to keep a written constitution around that do not entail originalism. The same is true for statutes (with the caveat that originalism is more defensible in statutory interpretation because statutes are easier to amend than the Constitution). For elaboration, see my forthcoming article "The Irrelevance of Writtenness in Constitutional Interpretation," available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1281066.

Posted by: Andrew Coan | Feb 16, 2010 1:41:42 PM

Andrew, why stop with the Constitution? Shouldn't we extend this to federal statutes, judicial decisions, and administrative regulations? Why should any of these be written, and does their "writtenness" actually have any impact on how they are interpreted?

Posted by: Orin Kerr | Feb 16, 2010 1:15:38 PM

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