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American Political Science Association

Conference on Constitutional Law

June 5–8, 2002
Washington, D.C.

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The New Originalism

Are We All Originalists Now? I Hope Not!

James E. Fleming

  1. What Is the New Originalism? Who Are the New Originalists? And What Is New about Their Originalism?
    1. These questions presuppose three prior questions: What is the old originalism? Who are the old originalists? And why have many scholars sought to move beyond old originalism to new originalism?
      1. What? The old originalism is an ism - a conservative ideology that emerged in reaction to the Warren Court (and early Burger Court).
        1. Before Richard Nixon and Robert Bork launched their attacks on the Court, originalism as we now know it did not exist.
        2. Constitutional interpretation in light of original understanding did exist, but original understanding was seen as merely one source of constitutional meaning among several - not as a general theory of constitutional interpretation, much less the exclusive legitimate theory.
        3. The old originalists conceive original understanding in terms of a concrete intentionalism (as distinguished from an abstract intentionalism)
      2. Who? The old originalists include, most prominently, Robert Bork and Raoul Berger (you will notice that I did not mention Hugo Black).
      3. Why? The old originalism is vulnerable to dispositive criticisms.
        1. Keith Whittington has forthrightly addressed many of these criticisms, e.g., that it was circular, question-begging, and axiomatic.
        2. Furthermore, the old originalism suffers from three incorrigible flaws:
          1. the moral burden of the old originalism with regard to both rights and powers: its concrete intentionalism entails that Brown v. Board of Education was wrongly decided and that most of the modern federal government is unconstitutional;
          2. the authoritarianism of the old originalism is a massive insult to the dignity of both the founders and us - it attributes arrogance to the authors of the norms of the Constitution and subservience to the subjects of those norms; and
          3. its concrete intentionalism is untenable as a theory of interpretation of our Constitution, which establishes a charter of abstract aspirational principles and ends, not a code of detailed rules.
    2. What is the new originalism? Who are the new originalists? And what is new about their originalism? Or, will the real new originalists please stand up?
      1. Many self-styled originalists are at pains to differentiate themselves from old originalists like Berger and to insist that their versions of originalism are not vulnerable to common criticisms of the old originalism.
        1. E.g., Scalia and Whittington, not to mention McConnell and Barnett.
        2. They probably would be loathe to call themselves “new originalists,” but their efforts show that originalism is a moving target.
      2. Scalia?
        1. In “Originalism: The Lesser Evil,” Scalia rejects “strong medicine originalism,” which he associates with Berger - roughly, originalism that is prepared to swallow the bitter pill of following whatever historical research shows to be the concrete original understanding, even if, e.g., it entails that Brown was wrongly decided.
        2. Instead, he embraces “fainted-hearted originalism”: originalism with a dose of evolutionary intent to the Constitution, or a “trace of constitutional perfectionism,” e.g., Brown was rightly decided.
        3. Furthermore, Scalia has supplemented originalism with his understanding that the Constitution includes certain traditions, understood as specific historical practices as distinguished from abstract aspirational principles (Michael H. fn. 6).
        4. Thus, Scalia incurs the charge by Bork that he is a conservative constitutional revisionist, i.e., a new originalist.
      3. Whittington himself?
        1. I confess that when I was invited to participate on this panel, and I was told that Keith would be on it, I thought that the new originalism that we would be assessing would be his originalism.
        2. After all, I understood that his project in his book, Constitutional Interpretation, is to reconstruct originalism, to attempt to rescue it from the flaws of the old originalism.
        3. And I understood that his project in his companion book, Constitutional Construction, is to broaden constitutional discourse to include two types of elaboration of constitutional meaning: not only interpretation by courts (the characteristic obsession of the old originalists) but also construction outside the courts by legislatures and executives.
          1. By contrast, the old originalists characteristically view the judicially enforceable Constitution as coterminous with the Constitution itself.
          2. For them, outside interpretation by courts and legislative and executive action in conformity therewith, there is only constitutionally gratuitous action.
          3. Accordingly, the old originalists have not been among those calling for taking the Constitution seriously outside the courts.
        4. I have known Keith to introduce a paper with a quotation from a song by the rock and roll band The Who. To encapsulate my critique of Keith’s originalism, I too want to invoke a line from a Who song:
          1. The song is “Won’t Get Fooled Again”; the lyric is “Meet the new boss, same as the old boss.”
          2. Keith forthrightly criticizes the old originalism for being circular, question-begging, and axiomatic.
          3. Yet his originalism is vulnerable for the same reasons and, more generally, it does not overcome the flaws of the old originalism.
          4. At the panel, I will elaborate this critique. I also will respond to his paper for the panel.
        5. I also will take up the relationship between interpretation and construction, the two types of elaboration that Keith distinguishes.
          1. Keith is singular among the constitutional theorists who have called for taking the Constitution seriously outside the courts.
          2. Others who have issued this call typically have a broad view of what the Constitution is and of how it ought to be interpreted. Typically, they do not characterize themselves as originalists.
          3. For example, Sager embraces a Dworkinian “moral reading of the Constitution,” or a justice-seeking constitutional theory. And he puts forward a “wide-bodied view of interpretation.” Then, to account for the thinness or moral shortfall of constitutional law, he distinguishes between the thin, judicially enforceable Constitution and the whole Constitution that is binding outside the courts upon legislatures, executives, and the citizens generally. That Constitution may impose affirmative obligations upon legislatures and executives to secure basic needs and the like, even if in the absence of such legislative and executive action, welfare rights are not judicially enforceable.
          4. Keith’s tack is different. My hypothesis is that, in response to critiques of the old originalism, he expands the realm of constitutional discourse to include constitutional construction outside the courts; but he does so in order to justify narrowing constitutional interpretation inside the courts to originalism.
          5. I owe the crispness of this hypothesis to conversations with Sotirios Barber and Reva Siegel.
          6. At the panel, I may say more about the relation in Keith’s project between interpretation and construction; I expect Reva to do so as well.
          7. For now, I want to emphasize that one can call for developing a conception of constitutional construction outside the courts - as I would - without committing oneself to viewing interpretation inside the courts as originalist.
      4. The Broad Originalists?
        1. The new originalists surely include the broad originalists, e.g., Lessig, Ackerman, Amar, Perry, Flaherty, Treanor, Kalman, and others.
        2. What is broad about their forms of originalism is that these theorists conceive original understanding (to which they argue fidelity is owed) at a considerably higher level of abstraction than do the narrow originalists like Bork and Scalia (to say nothing of Whittington).
        3. At the same time, they typically argue that the quest for fidelity in constitutional interpretation requires that we reject theories like Dworkin’s “moral reading of the Constitution.”
        4. In my paper for the Fordham Symposium on “Fidelity in Constitutional Theory,” I explored the reasons for the broad originalists’ resistance to the moral reading.
          1. I argued that broad originalists, like narrow originalists, fundamentally misconceive fidelity. The commitment to fidelity entails, as Dworkin argues, that we should interpret the Constitution so as to make it the best it can be.
          2. I also suggested that the moral reading is a big tent, and that the broad originalists should reconceive their work as coming within it: in particular, as being in service of the moral reading by providing a firmer grounding for it in fit with historical materials than Dworkin has offered.
      5. Dworkin?
        1. Finally, Whittington has suggested that Dworkin (of all people!) is a new originalist. (See his article, “Dworkin’s ‘Originalism’: The Role of Intentions in Constitutional Interpretation.”)
        2. After all, as I have put it, Dworkin has sought to turn the tables on the narrow originalists like Bork and Scalia: he argues that commitment to fidelity (understood as pursuing integrity with the moral reading of the Constitution) entails the very approach that they are at pains to insist it forbids, and prohibits the very approach that they imperiously maintain it mandates.
        3. But I would resist characterizing Dworkin as a new originalist, for doing so seems to presuppose that anyone who argues that she or he has the best constitutional theory - of what the Constitution is, what is interpretation, and what is fidelity in constitutional interpretation - is claiming thereby to be an originalist. (See my discussion below of “the originalist premise.”)
      6. All of the above?
  2. Are We All Originalists Now? I Hope Not!
    1. The brochure for this conference poses the question “Are we all originalists now?”
      1. If anything would prompt that question, it would be an understanding of Dworkin as a new originalist!
      2. My response to the question is: “I hope not!” Below, I will explain why.
      3. But first, I want to show that there is a trick in the question.
    2. The trick is this: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it.
      1. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation.
      2. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation.
      3. I will sketch some of the problematic assumptions underlying this premise (and thus the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms).
    3. Worse yet, raising the question may presuppose that we all have come around to Scalia’s and Bork’s way of thinking, without conceding that their versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.
      1. To illustrate, let’s have a pop quiz. Read the following passage:
        1. “In short, all that a judge committed to original understanding requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a major premise. That major premise is a principle or stated value that the ratifiers wanted to protect against hostile legislation or executive action. The judge must then see whether that principle or value is threatened by the statute or action challenged in the case before him. The answer to that question provides his minor premise, and the conclusion follows. It does not follow without difficulty, and two judges equally devoted to the original purpose may disagree about the reach or application of the principle at stake and so arrive at different results, but that in no way distinguishes the task from the difficulties of applying any other legal writing.”
      2. Who wrote the passage? Choose from the following:
        1. Larry Lessig
        2. Ronald Dworkin
        3. Robert Bork
        4. Keith Whittington
        5. Antonin Scalia
      3. The correct answer: c) Robert Bork!
      4. The passage suggests that, whether or not Bork would admit it, he has made spectacular concessions to critics of originalism like Dworkin.
    4. Finally, saying that we all are originalists now would be tantamount to defining originalism to embrace all conceptions of what is the Constitution?, what is interpretation?, and therefore what is fidelity in constitutional interpretation?
      1. Yet differences will remain in constitutional theory with respect to these issues, and it will confuse rather than clarify matters to lump all positions under the label originalism.
      2. Keith has made a similar point in his criticism of what he takes to be Dworkin’s new originalism.
      3. I would apply the point to Keith’s own treatment of Dworkin as a new originalist (and a fortiori to his suggestion in the same article that moral realists like Michael Moore and Sotirios Barber are also new originalists).
    5. It is important to understand and to avoid some misconceptions that undergird or drive the originalist premise (which in turn underlie the view that we are all originalists now):
      1. In this outline, I merely label these misconceptions; at the conference, I shall consider whether and to what extent Keith’s reconstructed originalism embodies them. (In what follows, I use ≠ to mean is not the same as, or that a commitment to the thing on the left side does not entail a commitment to the thing on the right side.)
      2. Originalism ≠ original understanding
      3. Originalism ≠ fidelity in constitutional interpretation
      4. Originalism ≠ interpretation
      5. The written Constitution ≠ originalism
      6. The classical, interpretive justification of judicial review ≠ originalism
      7. The turn to history ≠ a turn to originalism
    6. Why do I hope that we are not all originalists now?
      1. Richard Posner, in “The Problematics of Moral and Legal Theory,”confessed to a visceral dislike of “academic moralism,” a body of literature bringing normative moral and political theory to bear in legal analysis: “A lot of it strikes me as prissy, hermetic, censorious, naive, sanctimonious, self-congratulatory, [and] insipid.”
      2. I have more substantive, and less visceral, reasons for hoping that we are not now all originalists.
        1. Originalism, old and new, is at bottom authoritarian, an insult to the founders for their arrogance and an insult to us for our subservience. A regime of purportedly dispositive concrete original meanings is, at best, beside the point in constitutional interpretation and, at worst, an authoritarian regime that is unfit to rule a free and equal people. To add further insult, its proponents serve it up to us in the name of democracy!
        2. Originalism, old and new, makes a virtue of claiming to exile moral and political theory from the province of constitutional interpretation. That is neither possible nor desirable, nor is it appropriate in interpreting our Constitution, which establishes a scheme of abstract aspirational principles and ends, not a code of detailed rules.
        3. Originalism, old and new, misconceives fidelity in constitutional interpretation: ironically, in the name of interpretive fidelity, originalists would enshrine an imperfect constitution that does not deserve our fidelity. The moral reading, because it understands that the quest for fidelity in interpreting our imperfect Constitution exhorts us to interpret it so as to make it the best it can be, offers hope that the Constitution may deserve our fidelity, or at least may be able to earn it.
    7. Furthermore, much of the best work in constitutional theory today is not originalist in either an old or a new sense; indeed, much of it is what I have called “post-originalist.”
      1. I will mention a few examples, without by any means being exhaustive.
      2. Dworkin: moral reading of the Constitution
      3. Me: constitution-perfecting theory
      4. Barber and Moore: teleological, moral realist reading of the Constitution
      5. Sager: justice-seeking constitutional theory
      6. Eisgruber: constitutional self-government, with Supreme Court speaking on behalf of the people about questions of moral and political principle
      7. Dorf: democratic experimentalism
      8. Strauss: common law constitutionalism
      9. West: aspirational, progressive constitutionalism
      10. Rubenfeld: reading the Constitution as written
    8. What would a post-originalist world look like?
      1. Note that I said “post-originalist,” not “nonoriginalist.”
      2. In what follows, I draw upon my pieces “Fidelity to Our Imperfect Constitution” and “Original Meaning Without Originalism.”
      3. A post-originalist world would give due regard to original understanding in constitutional interpretation without being originalist.
      4. In a post-originalist world, we would understand that history is, can only be, and should only be a starting point in constitutional interpretation. It has a threshold role, which is often not dispositive.
        1. In the dimension of fit, history helps (or should help) screen out “off-the-wall” interpretations or purely utopian interpretations, but often does not lead conclusively to any interpretation, let alone the best interpretation.
        2. History usually provides a foothold for competing interpretations or competing theories.
        3. It alone cannot resolve the clash among these competing interpretations or competing theories.
        4. To resolve such a clash, we must move beyond the threshold dimension of fit to the dimension of justification.
      5. Reva Siegel’s work is post-originalist in the sense that she understands that history matters, not as it binds our choices - as it were, through “the law of the father” - but as it informs our choices, decisions for which we as a people are responsible.
      6. Similarly, Martin Flaherty has suggested that in a post-originalist world, we would take an “experiential” rather than authoritarian approach to the use of history in constitutional interpretation.
      7. In conclusion, a post-originalist world would look somewhat like the pre-originalist world - treating original understanding as one source of constitutional meaning among several, not the exclusive legitimate theory, and using history for what it teaches rather than for what it decides for us - although it would be far more sophisticated theoretically than that world was.