The American Constitution and the Debate over Originalism

The American Constitution and the Debate over Originalism

by Dennis J. Goldford

Located at the intersection of law, political science, philosophy, and literary theory, this book explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. It traces that debate to a particular set of premises about the nature of language,…  See more details below


Located at the intersection of law, political science, philosophy, and literary theory, this book explores the nature of American constitutional interpretation through a reconsideration of the long-standing debate between the interpretive theories of originalism and nonoriginalism. It traces that debate to a particular set of premises about the nature of language, interpretation, and objectivity, premises that raise the specter of unconstrained, unstructured constitutional interpretation that has haunted contemporary constitutional theory.

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The American Constitution and the Debate over Originalism
Cambridge University Press
0521845580 - The American Constitution and the Debate over Originalism - by Dennis J. Goldford


Despite its apparent remoteness from everyday politics and its often esoteric character, constitutional theory in the United States is never a matter of purely abstract, disinterested speculation. As the legal expression of essentially political conflict, controversies in American constitutional theory are, rather, the theoretical and principled expression of intensely partisan, practical concerns. Stimulated by the Warren Court and its jurisprudential legacy, the dominant controversy in contemporary American constitutional theory for some fifty years has been the conflict over the merits of the interpretive paradigm known as "originalism," "the theory that in constitutional adjudication judges should be guided by the intent of the Framers."1 As a work of constitutional theory, this book seeks to explore the nature of American constitutionalism through an analysis of the nature of constitutional interpretation. Specifically, its guiding premise is that a reconsideration of the originalism debate will illuminate the essentially constitutive character of the Constitution, and, in turn, that an understanding of that constitutive character will cast a fresh light on the familiar originalism debate.

Although the originalism debate brewed quietly in academic and intellectual circles throughout the 1970s, the general public's awareness of it was stimulated by the determined and single-minded jurisprudential agenda of the Reagan administration during the 1980s. "The most basic issue facing constitutional scholars and jurists today," stated a 1987 report of the Office of Legal Policy in the Reagan Justice Department, "is whether federal courts should interpret and apply the Constitution in accordance with its original meaning."2 With the passing of the Reagan years and, in particular, the failed nomination of Judge Robert Bork to the Supreme Court,3 the originalism debate moved back out of public awareness and even out of most law reviews.4 Nevertheless, the debate is reignited every time a nomination to a seat on the Supreme Court goes before the Senate. For example, in his opening statement at the confirmation hearings for Justice Ruth Bader Ginsburg in the summer of 1993, Senator Orrin Hatch set forth the standard originalist position:

The role of the judicial branch is to enforce the provisions of the Constitution and the laws we enact in Congress as their meaning was originally intended by the Framers. Any other philosophy of judging requires unelected Federal judges to impose their own personal views on the American people in the guise of construing the Constitution and Federal statutes.5

The claim that in constitutional adjudication we necessarily face the interpretive choice between the intentions of the Framers and the personal views of unelected federal judges, and that the former have a democratic legitimacy that the latter do not,6 is central to originalism, and it is a claim that this book will examine in detail.

For now, however, the question is, why does the originalism debate over the proper standards of constitutional interpretation recur? The answer, I suggest, is twofold. First, as Chapter 1 will note, the contemporary originalism debate springs from an immediate, historically specific political context: the cultural struggle over the meaning and legacy of the 1960s waged by liberals and conservatives in the final third of the twentieth century. Yet, second, while this debate may have been set off by a particular political context, its roots lie in the very nature of the American constitutional system itself. The contemporary originalism debate is a particular formulation of an ongoing concern with the nature of constitutional interpretation that stems from the fact that in the United States we live under a written constitution. Fundamental political conflict in the United States comes to constitutional expression not simply because of the peculiar feature of American political culture captured in Alexis de Tocqueville's famous dictum that "scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question."7 The truth of de Tocqueville's observation rests not on a mere idiosyncrasy of American political culture, but rather on what I suggest is the central feature of the American polity: We are a society constituted, which is to say ordered, by our fidelity to a fundamental text. The common bond of American society, as so many people have recognized, is not race, ethnicity, language, or religion, but the Constitution.

This common bond, however, is of a very special sort. The Constitution is a written document, but it is a written document with social reality. In philosophical terms, the Constitution is not just linguistic, but ontological. This is what we mean when we say, with deceptive simplicity and apparent redundancy, that the Constitution constitutes. The Constitution has a social reality in that it is not simply a legal document, as are so many written constitutions around the world that may or may not be in force. Rather, its social reality lies in the fact that through it we actually define who we are as a people. The Constitution certainly defines who we are as a people in a symbolic sense, as do the flag and other symbols of American nationhood. Yet to say that the Constitution constitutes is to argue that it defines who we are as a people not just in a symbolic sense, but, more significantly, in a substantive sense. We Americans are, I suggest, a people who live textually.

Given this special character of the Constitution, therefore, political conflict over principles basic to and definitive of American society quite naturally finds expression in conflict over interpretation of the fundamental text that formalizes those principles and renders them authoritative. As Gary McDowell has written, "the fact that the Constitution orders our politics means that, politically, a great deal hangs on the peg of interpretation; to change the Constitution's meaning through interpretation is to change our politics."8 "By controlling the meaning of a text," he says, "one can control - shape, mold, and direct - the affairs of that society bound by that text."9 While I will proceed in this book with an argument against much of what McDowell intends by such a claim, I strongly affirm the claim itself.10 The idea of controlling American society by controlling the meaning of its fundamental constitutive text is, I submit, precisely the core of the claim that we Americans are a people who live textually. And, no less important, this same idea explains the controversial nature of the originalism debate in contemporary American constitutional theory. As an argument about controlling the meaning of our fundamental constitutive text, the originalism debate is an argument about controlling the affairs of our society. That fact is what gives an apparently abstract jurisprudential controversy its concrete, partisan passion.

The originalism debate, however, is often erroneously conflated with the other, longer-standing debate traditionally occurring in constitutional theory: the debate over the legitimacy of judicial review, which subsumes within it the argument over judicial activism and judicial restraint.11 The common thread between the two is their derivation from the proposition - the first principle of the American political system - that the Constitution is fundamental law. To grasp that principle, the central logic of American constitutional reasoning can be formulated in terms of what I call our "constitutional syllogism":

P1: If X is contrary to the Constitution, then X is null and void.
P2: X is contrary to the Constitution.
C: Therefore, X is null and void,

where X is an act of a federal, state, or local legislative, executive, or judicial body.12 P1 is the major premise of the constitutional syllogism and expresses the proposition that within the American political system the Constitution counts as fundamental law. More than merely the major premise of the constitutional syllogism, however, P1 is the first premise of the American political system itself, and throughout all constitutional controversies it remains unchallenged. P2, for its part, is the minor premise of the syllogism and expresses the claim that a particular act of government is inconsistent with the powers granted by the Constitution. Given the major and minor premises of the constitutional syllogism, the conclusion necessarily follows that the particular act of government in question is null and void. What, then, is the source of controversy in constitutional interpretation if the conclusion necessarily follows from the premises of the syllogism? The problem is P2, for it raises two central questions: First, who in the American political system is authorized to determine that X is contrary to the Constitution? Second, how - that is, by what criteria - does the authorized interpreter(s) determine that X is indeed contrary to the Constitution?13 The question as to who in the American political system is authorized to determine that X is contrary to the Constitution initiates the debate over the legitimacy of judicial review and the complementary debate over judicial activism and judicial restraint.14 By contrast, the question as to the criteria by which one determines that X is contrary to the Constitution is the foundation of the originalism debate.15

As the structure of constitutional reasoning, the constitutional syllogism as a whole expresses the idea of binding the future at stake in the concept of fundamental law. Behind all the various provisions of the American Constitution there stands a fundamental and widely acknowledged premise: The purpose and very nature of a constitution - especially a written constitution - is its capacity to bind the future. Sanford Levinson explains this idea nicely:

Constitutions, of the written variety especially, are usefully viewed as a means of freezing time by controlling the future through the "hardness" of language encoded in a monumental document, which is then left for later interpreters to decipher. The purpose of such control is to preserve the particular vision held by constitutional founders and to prevent its overthrow by future generations.16

Walter Berns likewise adverts to this premise when he writes that the Framers "provided for a Supreme Court and charged it with the task, not of keeping the Constitution in tune with the times but, to the extent possible, of keeping the times in tune with the Constitution."17 The concept of "binding capacity" is truly a strong point of originalism, for binding the future is, in American political thought, the very purpose of a written constitution in the first place. "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually," Hamilton wrote in Federalist 78.18 Marshall echoed him in Marbury:

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.19

Similarly, Raoul Berger points to Jefferson's comment that the purpose of a constitution is to "bind down those whom we are obliged to trust with power," doing so "by the chains of the Constitution."20

While the binding capacity of the Constitution comes into play in the area of structural principles such as federalism and the separation of powers, perhaps the prime example of that capacity is its role in the problematic relation between majority rule and individual rights. As fundamental law, the Constitution, supposedly above politics, is always drawn into political controversies between majority rule and individual rights precisely because of its binding function. Through this function the Constitution establishes the distinction, central to American political culture, between the sphere of matters subject to decision by majority rule, regardless of individual preferences to the contrary, and the sphere of matters subject to individual choice, regardless of majority preferences to the contrary. The Constitution binds contemporary majorities to respect this distinction and thereby not to act in certain ways, however democratically decided, vis-à-vis individuals. Robert Bork aptly distinguishes between these spheres in terms of what he has famously called the "Madisonian dilemma":

The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled. The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule. The dilemma is that neither majorities nor minorities can be trusted to define the proper spheres of democratic authority and individual liberty....We have placed the function of defining the otherwise irreconcilable principles of majority power and minority freedom in a nonpolitical institution, the federal judiciary, and thus, ultimately, in the Supreme Court of the United States.21

As it attempts to reconcile these contending spheres, to police the boundary between two principles "forever in tension,"22 the judiciary, which itself is never to make policy decisions, is always drawn into politics because it puts procedural and substantive limits on the policy decisions that can be made. It is the binding capacity of the Constitution that grounds the obligation of an otherwise democratic polity to accept and respect these limitations. Given the framework of a sphere of majority rule and a sphere of individual choice, the traditional problem, of course, is to decide what falls within each sphere. In analytical terms, the political question in such instances is always, does the Constitution bind a contemporary democratic majority to cede decision-making power to the individual? The nature and extent of the Constitution's binding capacity, however, turn directly on the interpretation of the text. That is why Jefferson cautioned: "Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction."23

Jefferson's statement here returns us, therefore, to our initial point - viz., that while the contemporary originalism debate arose in a particular political context, its roots and recurrence lie in the very nature of the American constitutional system itself. That nature is quite simply the fact that "Our peculiar security is in the possession of a written constitution." The concern that we not make the Constitution "a blank paper by construction" illustrates the corollary fact that as long as we have a written constitution, we are going to have arguments over the nature of constitutional interpretation. Originalism is an interpretive theory advocated precisely as a way - indeed, the only way - to ensure that the Constitution will not be made a blank paper by construction. Its focus on the concept of original meaning is the crux of the theory: Whatever complexities it might involve and whatever forms it might take, originalism at its simplest holds that a constitutional provision means precisely what it meant to the generation that wrote and ratified it, and not, as nonoriginalism would contend, what it might mean differently to any subsequent generation. Originalists themselves, we will see, differ as to evidence of original meaning. For some, the original meaning is grounded in the intentions of the writers - the authors - of the Constitution, the position I shall call "hard originalism"; for others, the original meaning is grounded in the understanding of the ratifiers - the first readers - of the Constitution, the position I shall call "soft originalism." Both versions, however, subscribe to the more general principle that in constitutional interpretation the normative context of interpretation is that of those who wrote and ratified the language in question rather than that of any later interpreters.24

This principle manifests the interpretive problematic endemic to American constitutionalism, a problematic that involves the nature and authority of written texts and their interpretation. The political theory of American constitutionalism rests equally on two fundamental premises, the premises of constraint and consent. The first premise is that the purpose of a constitution, especially a written one, is to bind future generations to the vision of its founders, that is, to constrain the American people - individuals and institutions, citizens and government officials alike - to follow the principles of the Constitution rather than anything else. The second premise is that the binding of future generations to the vision of the founders is a democratically grounded and legitimated act of We the People, that is, that in some sense We the People have consented to be governed - bound - by the principles set forth in the Constitution. To speak of the Constitution's capacity to bind the future crucially presupposes the capacity of language, and especially the capacity of written texts, to structure human action, and this is to point to an important intersection between the social sciences' traditional interest in investigating social phenomena and the humanities' traditional interest in investigating language. That intersection is the grounding of human texts in human activity and the structuring of human activity by human texts, an interrelation I call "textuality."25 Thus, an explanation of the binding capacity of the Constitution involves a theory of constitutional textuality - a theory of the ontology of language, if you will - because such binding capacity consists of a particular relation between the Constitution and American society.

If textuality is the key to binding capacity, then interpretation is the key to textuality. Whatever else it might be, in formal terms "constitutional interpretation" means interpretation of the Constitution, a statement that, far from being merely a banal tautology, implies the important substantive proposition that the constitutional text regulates - governs - the range of possible interpretations and thus constrains the interpreters. Interpretation must occur in the terms of the constitutional text - in the sense that the constitutional text provides the language of interpretation - and within the terms of the constitutional text - in the sense that the constitutional text constrains the range and substance of interpretation. An interpreter must in principle be able to say, "Regardless of - indeed, at times contrary to - my own personal values, popular opinion, or any other factors, in my best judgment the Constitution requires X." In and of itself, the claim that in constitutional interpretation we should be bound by the text of the Constitution is an unobjectionable statement of the idea of binding the future at the very core of the concept of a constitution. To be a constitutionalist of the American variety, therefore, is necessarily to be a "textualist" in the broad sense that one ascribes authority to a particular written text.

© Cambridge University Press

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