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Wednesday, February 17, 2010

Should We Care Why the Founders Chose a Written Constitution?

As Keith Whittington tells it, the founders deliberately chose a written constitution for two reasons. First, only a written document could be presented to the sovereign people for ratification and thus provide a popular check on the actions of government officials. Second, only a written constitution could guard against the evils the founders had come to associate with the unwritten British constitution—chiefly, uncertainty and mutability in the face of political temptation. To serve either of these purposes, however, the meaning of a written constitution had to be fixed at the date it was authoritatively ratified by the people. Otherwise, the Constitution would cease to embody the will of the people and cease to provide a fixed bulwark against abuse by their governmental agents. For these reasons, Whittington argues, only an originalist approach to constitutional interpretation is consistent with the founders’ embrace of a written constitution.

So stated, Whittington’s argument appears to rest entirely on the authority of the founders’ reasons for embracing a written constitution, which he offers no independent justification for treating as authoritative. Whittington is sensitive to this issue, however, and expressly disclaims any argument from authority. Rather, he suggests, we should look to the founding “in search of other people who have thought about … whether or not to have a written constitution and thus may be expected to have considered the matter in depth.” In so doing, he emphasizes that the arguments and historical purposes of the founders “have weight because of their content, not their source.”

This acknowledgment insulates Whittington’s argument against charges of boot-strapping, but it creates two other problems. First, if it is truly the content and not the source of the founders’ reasoning that matters, that content is essentially identical to the hotly contested popular sovereignty and rule of law arguments for originalism. This does not mean we should not take it seriously, but it does mean writtenness is doing little if any independent work. Second, relying on the founders’ arguments from popular sovereignty and constraint is even more problematic than relying on contemporary arguments of this sort because the founders were operating in a very different legal, historical, and political context. They were debating a new constitution; contemporary theorists are debating a very old one. That means the most powerful objection to the popular sovereignty argument—the dead hand problem—was much less of an issue for the founders than it is for contemporary originalists. The founders were also operating in a new nation at a time of severe political and social instability; contemporary theorists are operating in a comparatively stable and deeply rooted political and social order. For this reason, fixed constitutional constraints probably seemed more pressing to the founders than they do in today’s mature democracy, which has many other resources—legal and otherwise—for restraining abuses of government power.

In short, the perceived connection of writtenness to originalism in the founding era offers no compelling reason for believing that writtenness entails originalism today. It is either an argument from authority based on the very authority it is supposed to justify—a classic case of bootstrapping—or it collapses into an even weaker version of the conventional arguments from popular sovereignty and fixed constitutional constraints. Either way, writtenness alone tells contemporary interpreters nothing about which interpretive approach to adopt.

Posted by Andrew Coan on February 17, 2010 at 12:00 PM | Permalink


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Professor Coan,

I've greatly enjoyed your posts and look forward to reading your article. I wonder how you reconcile your "writtenness" critique with the way "interpretation" is conventionally applied in the context of other written documents. Take, for example, judicial opinions, which, like constitutions, are usually written and which, like constitutions, serve as a source of law. However, there is no general desire to "interpret" written judicial opinions in ways that depart from their conventional meaning the time they were written. We do not, for example, attempt to "interpret" Plessy v. Ferguson to allow "separate but equal" to require racial integration. Instead, we acknowledge that the "meaning" of that case (like other cases) was fixed at the time it was written and then decide whether or not that fixed meaning is something we want to continue following. I think a convincing case for "interpreting" the Constitution in a manner that departs from the original, fixed meaning of constitutional provisions (as opposed to recognizing the fixed meaning and then deciding whether or not we want to follow it) has to explain why it is legitimate to adopt strained and implausible readings of constitutional texts unmoored from their conventional original meanings when that approach departs so significantly from the way in which we approach other written texts, including texts that carry the force of law.

Posted by: Ryan C. | Feb 18, 2010 9:51:28 PM

I agree that the written nature of it is not determinative of what interpretation methodology to use but as an aside, I don't think it even occurred to the Founders to have an unwritten constitution, just because of the tradition of written-ness stretching all the way back to the company charters of the colonial period.

Posted by: Anna Su | Feb 17, 2010 3:42:39 PM

What the framers thought about the writtenness of the Constitution, though, may have been embodied in the Article VI oath, which has immediate contemporary significance because it's still taken.

Posted by: Chris | Feb 17, 2010 3:14:09 PM

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