originalism

Panel Recap – Roundtable: About the Constitution in 2020

Bringing together four of Yale Law School’s constitutional heavyweights, last Friday’s roundtable discussion was both backward- and forward-looking. Moderated by Duke’s Neil Siegel, the panelists spoke about the Constitution in 2020 as a movement, where it came from and what it aspires to achieve. After Reva Siegel introduced the Constitution in 2020 project, Robert Post spoke on democratic constitutionalism, Jack Balkin examined the purposes of a constitutional theory, Bruce Ackerman highlighted a constitutional concern for economic justice, and all the professors debated the future of the Supreme Court and its appointment process.

 Video courtesy of Yale Law School.

 

Reva Siegel recounted how this "Constitution in 2020" endeavor was instigated in response to a conservative project called the Constitution in 2000. The Constitution in 2000 was a document produced within the Reagan Justice Department in 1988 setting forth favored and disfavored lines of constitutional decisions. The document was a blueprint for change, imagining how a more conservative constitutional terrain could be achieved through judicial appointments and constitutional litigation. It was utopian, but restorative. It was also highly successful. Now it has spawned a responsive vision, the Constitution in 2020 project, which includes conferences, a book, and this blog.

Robert Post followed Professor Siegel, explaining the seeming paradox of “democratic constitutionalism,” one of the constitutional theories at the heart of the 2020 project. “Democratic” evokes politics, the will of the people. “Constitutional” evokes the limits on that political will. But the two are conjoined because a constitution must be democratically legitimate; it must be a constitution of the people. A constitution, given to us by the past, becomes ours through a process of “norm contestations.” Such contestations cause us to read the document differently, and in this way, the cultural values of a generation and that generation’s understanding of the document are linked. For example, the same-sex marriage controversy is being fought in many states, about state laws, but we know that our federal constitution is at stake in these contestations. Such challenges make us reconsider what we think of as part of America’s constitution.

Jack Balkin discussed three basic purposes of a constitutional theory like democratic constitutionalism: (1) legitimation, (2) dissent, and (3) persuasion. When constitutional theories legitimate, they articulate, in a way that people can understand, why what courts, legislatures, or presidents have done is legitimate. Second, when the people in power are not “your people,” you need a theory of interpretation to dissent from what is otherwise decided. Originalism was a classic method of dissent from the early 1970s to early 1990s. Finally, the basic way that the constitution changes over time is that people persuade one another that they are not thinking about the constitution correctly. In this way, an interpretive theory can change constitutional common sense. Appointments are just one piece of the puzzle: changing the constitutional culture through persuasion is more potent.

Finishing up the presentations, Bruce Ackerman distilled the constitutional development of the last two centuries down to two themes: identity (who are we?) and economic justice. These themes have alternated in prominence throughout our history, and Ackerman argued that we should return to a focus on economic justice. Over the last sixty years, we have made a lot of progress on the identity front, but have regressed on the quality of economic life in America. We are a much more unequal society today, economically, than we have been since the Great Depression. Ackerman claims that landmark statutes like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 are part of our constitutional order. Accordingly, he would like to see new landmark statutes on economic justice, environmental issues, and what will happen after the next attack.

Neil Siegel concluded the roundtable by posing questions on the Supreme Court confirmation process and the difference between aspirations and reasonable exectations for 2020 (after all, Justices Scalia and Kennedy will probably still be on the Court in 2020). In response to the first question, Reva Siegel lamented the fact that Americans lack the political vocabulary to talk about how judging is not just politics, but neither is it just impersonal mechanics outside the sphere of discretion.

Professor Balkin responded that the stakes have been increasing with each nomination since the 1980s because the Justices are not leaving the Court with the same frequency. Balkin recommended that the President make an appointment every two years, and if there are more than nine Justices as a result, then the most junior nine should decide most cases.

On the second question—aspirations versus reasonable expectations for the Supreme Court—Ackerman was dismissive, reminding listeners that the Court is historically a laggard in the construction of a new constitutional regime. Brown is a too-memorable exception when the Court took the lead. Reva Siegel reflected on the birth of the Constitution in 2020 project in 2004-2005 and concluded that the country has since changed in ways that were unimaginable then. Change is possible, she reiterated, a fitting and hopeful conclusion to the roundtable.

I will leave you with some questions raised by the panelists’ discussion. Most fundamental to the Constitution in 2020 project: what is the best strategy for changing the constitutional culture? In Professor Balkin's words, how do we take what is off the wall and put it on the wall? Is it through a new constitutional theory, like democratic constitutionalism? Is it through constitutional litigation? Through judicial appointments? Through landmark legislation? Are Article V amendments out of the question? And how central is the Supreme Court to the endeavor? These questions anchored the conference, and the answers we come up with will dictate whether the Constitution in 2020 enjoys the same success as the document that provoked it.

How Constitutional Theory Matters

Crosspost from Balkinization

Over the last quarter century, conservative intellectuals and opinion-makers have promoted their political agenda by (in part) tethering it to a family of constitutional modalities that, for the sake of convenience, we may place under a single surname: originalism. The originalism movement was born of a crisis of confidence on the right; it was part of a politics of backlash against the perceived excesses of the Warren and Burger Courts. Now, notwithstanding control of the White House and Congress, progressive intellectuals face their own crisis of confidence, and the question naturally arises: What will Our Originalism look like?

I think this is the wrong question for progressive intellectuals to ask. It overstates—or rather misunderstands—the role that constitutional theory has played in conservative politics and, in doing so, misunderstands the role that it could play in the progressive politics of our imagined future. The originalism movement has had two interrelated goals, one of which has had only limited success and the other of which has succeeded beyond any reasonable expectations. First, though not foremost, originalism has been aimed at crafting a conservative jurisprudence. Numerous planks of the Reaganite conservative legal agenda may be stated in arguably originalist terms: for example, opposition to abortion rights, restrictions on school prayer, gun control, private litigation against government officials, and procedural rights for criminal defendants. But if the goal was to use originalism to achieve this or some other set of originalist-grounded doctrinal objectives, it has not nearly been realized. There is District of Columbia v. Heller, of course, and state sovereign immunity has been beefed up considerably, but one is hard-pressed to identify any other significant doctrinal developments over the last 25 years that are both originalist (other than coincidentally) and consistent with traditionally conservative political commitments.

The limited jurisprudential utility of a resolute commitment to originalism makes perfect sense. No serious legal professional can be originalist in the way in which its promoters in the public sphere usually mean it: that constitutional interpretation will be dictated by the expectations of the ratifying generation. Most American women like their equality just fine, thank you. And so originalists, to be taken seriously, must water the doctrine down so as not too much to unsettle the vast architecture of settled law that is inconsistent with original understandings. In light of broad, unanticipated, and well-calcified expansions in the administrative state, in congressional and executive power, and in individual rights, there is surprisingly little of relevance for “faint-hearted” originalists to pick at. Moreover, and inevitably, many of today’s conservatives, including on the Court itself, like their executive power just fine, thank you. They have little taste for doctrinaire originalism. For these reasons, I have come to the view that the window for originalism-motivated constitutional change is closed for the foreseeable future, with relatively little to show for itself by way of doctrine.

As I said, however, affecting constitutional doctrine was not the foremost goal of the originalism movement. Rather, originalism’s brilliance lies in its capacity to validate conservative politics. Originalism is at once cousin and heir to meaningless terms like strict constructionism and judicial restraint, the crucial difference being that, within professional discourse, originalism is not meaningless at all. Rather, a serious debate can be had, and has been had, about what originalism entails, when it should and should not be used, and what its limitations might be. And thus the fight was joined. The originalism movement had champions both within the world of self-respecting legal professionals—most prominently, Judge Bork and Justice Scalia—as well as outside of it—including demagogues like Rush Limbaugh and Glenn Beck. Within non-professional discourse, the originalism movement has helped give a populist frame to elitist conservative politics. It has done so both by highlighting the countermajoritarian difficulty and by creating synergies between the rhetoric of legal advocacy and a particularly resonant American cultural narrative of restoration. If you’ve been persuaded that you “want your country back,” then those espousing originalism within judicial politics are selling what you’re buying. By helping to marry conservative politics to the professed meaning of the Constitution, originalism has been a powerful weapon in the right’s arsenal. Additional effects on doctrine then come not by way of originalist opinions but indirectly through what Jack Balkin and Sandy Levinson have called partisan entrenchment: successful conservative politicians have availed themselves of their right to stock the bench with like-minded judges.

For many progressives, this is a depressing account. It not only suggests that substantive doctrinal change must await a much more sustained period of political control than the current moment represents, but it also, more ominously, seems to imply that constitutional theory doesn’t much matter, or at least doesn’t matter in the way we often want it to matter. The dream of many progressive legal professionals is to articulate a theory of constitutional interpretation that, faithfully applied, accomplishes a set of liberal doctrinal objectives: perhaps mitigation of the state action requirement, abolition of the death penalty and wantonly excessive prison sentences, and defense and enlargement of the civil rights gains of the Warren Court in areas like desegregation, gay rights, and the rights of the poor. I am confident that that dream is achievable in the abstract and that, like originalism, some progressive constitutional theory can supply the right idiom if and when, in limited ways, these gains are made through judicial decisions.

I am not at all confident, though, that the more robust success of the originalism movement as a validator of conservative politics may be replicated for progressives. We adopt that label because we believe in progress rather than regress: by and large, our substantive political vision trades not in memory but in imagination. Judges are inherently limited in their imaginative capacity; they cannot ordinarily be counted on to lead revolutions, or even to countenance them. As a parade of scholars from Frankfurter to Bickel to Kurland to Bork to Berger to Ely (each of whom could, at a time, be described as progressive) has argued, even the Warren Court was not theoretically attentive or ambitious. If and when progressives coalesce around a coherent set of constitutional values, they will not likely resonate with traditional conceptions of the judicial role: they will be forward-looking and democratic, and will de-emphasize the judicial monopoly over constitutional meaning. In short, our revolution will not be theorized, not by academics and judges anyway. That is no reason to promote a jurisprudence of judicial minimalism, but it is every reason to expect one.
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Jamal Greene is Associate Professor of Law at Columbia Law School. He will be appearing on Saturday's "Constitutional Theory" panel with Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), Richard Primus (University of Michigan Law School, "The Necessity and Peril of Ethical History"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").

The Necessity and Peril of Ethical History

Crosspost from Balkinization

Distinguish three forms of historical argument in constitutional theory: as positive authority, as practical experience, and as national ethos.

 
    (1) History deployed as positive authority purports to settle the meaning of clauses or doctrines by reference to things that happened in the past.  For example, the way language was commonly used in 1789 might be adduced to establish the meaning of “religion” in the First Amendment, and the practices of many different states over time might be adduced to determine whether a particular liberty is fundamental for the purposes of substantive due process. 

    (2) History deployed as practical experience aims to help decisionmakers translate normative constitutional visions into effective institutional arrangements.  It might point out that something taken as necessary is actually contingent; or that something regarded as happenstance has resisted numerous attempts at change; or that different institutions have had differing success in pursuing certain goals; or that an axiom of constitutional wisdom may be an inherited bromide rather than a cogent analysis of how government operates. 

    (3) History deployed as national ethos attempts to tell a story about the constitutional values of the American People.  We are a people who prize democracy, or federalism, or who fought a terrible Civil War to end slavery, or whose institutions presuppose a Supreme Being.

                                                                                                                              *        *        *

Of these three forms of argument, history as national ethos is often the most powerful.  It sometimes comes cloaked as one of the other kinds: many historical arguments that seem to sound in positive authority or practical experience are better understood as sounding in ethos.  They do their work if they persuade their audiences to accept not just the particular historical propositions for which they are offered but a general and value-laden impression about the meaning of American history.  Much originalist argument is best understood as argument about national ethos, inasmuch as it attempts to portray a heroic American constitutional past that supports a particular set of value choices in the present.  Much of what we call “redemptive constitutionalist interpretation” similarly deploys history as ethos.

Successful movements in constitutional politics are good at making historical arguments that sound in national ethos.  I hope that in the year 2020 progressives will stand securely on their versions of the national ethos in the sphere of constitutional politics.  But there is a danger here for scholars who are attracted to the arena of those politics. 

Because American history can be narrated in several different ways that highlight different (and conflicting) values, the interpreter who deploys history as ethos will privilege some values and shunt others aside.  The choice can be made with varying levels of self-awareness, but the narrative offered will always be partial and contestable.  Making those choices is an appropriate activity in politics, including constitutional politics.  But such simplifications are dangerous to the spirit of scholarship, which should embrace complexity rather than repressing it away.  Accordingly, constitutional theorists who work in the academy should beware of presenting their ethical narratives as—to use a phrase advisedly—the law.

This does not mean that good scholarship should not be normative.  It means only that the normativity appropriate to scholarship must be consistent with rendering the world in its complexity.  Where the dominant historical narrative supports undesirable constitutional politics, it is appropriate for scholars to showcase alternatives, thus pointing out that the world is complex and that the dominant narrative is not a necessary framing.  In that spirit, I have previously recommended the development of “mobilizable history” beyond what is conventionally made the source of constitutional argument.  But constitutional theory—or at least academic constitutional theory—should remain aware that any alternative narratives are also partial.  And public officials should strive to remember that complexity when making constitutional decisions now, in 2020, and beyond.

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Richard Primus is Professor of Law at University of Michigan Law School. He will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), and David Law (Washington University School of Law, "The Failure, and Future, of Constitutional Theory").
 

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