Common law, common ground, and Jefferson's principle.

• Author: Strauss, David A.

1. INTRODUCTION

   Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framers, why do we care about their handiwork, the Constitution itself?. It was the product of the Framers' times and the Framers' sensibilities. What possible reason can we have for allowing its provisions to rule us today? Even if the Founding generation was exceptionally visionary and enlightened, we would not allow ourselves to be ruled by even the most extraordinary group of people if they lived in another country halfway across the world today. Why do we allow ourselves to be ruled by the decisions of people who lived in a time that was, in every relevant respect, much further away than that?

   These might seem to be the most academic of questions. No one seriously disputes that the Constitution is supreme law, and nearly everyone acknowledges that the views of the Framers matter to some degree. Academic or not, though, these questions are important because throughout constitutional law, the role of text and original understandings remains uncertain. Until we have tried to answer the most fundamental skeptical question--why do we care at all about the Framers?--we will not know what role the text and the original understandings should play.

   The role of the text and the original understandings may be as much in dispute today as it has ever been. In some areas--federalism, the right to keep and bear arms under the Second Amendment, the Eighth Amendment's protection against cruel and unusual punishment, the Religion Clauses of the First Amendment--there is a concerted effort underway, by advocates and sometimes by judges and Justices, to make constitutional law conform more closely to what are said to be the dictates of the text and the original understandings, (1) To what extent should the original understandings govern the interpretation of those provisions, or of the Free Speech Clause of the First Amendment, or the Fourth Amendment, or the Self-Incrimination or Just Compensation Clauses of the Fifth Amendment, or the Due Process and Equal Protection Clauses of the Fourteenth Amendment, or the structural provisions of the original Constitution? Critics have powerfully attacked the notion that constitutional interpretation can rely exclusively on the text and the original understandings; (2) but as long as the text and original understandings play some role in constitutional interpretation--as essentially everyone agrees they must--these issues about the role of text and original understandings will remain with us, and we will have to address the fundamental question of why the Framers matter at all.

   There is no agreed-upon answer to that question. It has been asked before: It was Thomas Jefferson's question at the time of the Founding. "[T]he earth belongs to the living, and not to the dead," he wrote to James Madison from Paris in 1789; (3) so how can any constitution purport to bind later generations? Jefferson was not alone in raising the question at that time--he was not even the most extreme skeptic--but his formulation was the most memorable.

   The problem is that Jeffersonian skepticism is very difficult to rebut, on one level, but wholly unpersuasive on another. It is, in fact, hard for anyone who believes in self-government to come up with an explanation for why long-ago generations should have such a decided effect on our law today, whether they are the generation of the Founding, or the Civil War, or any other. But at the same time, Jeffersonian skepticism about the Constitution seems out of touch with the reality of our political and legal culture, or even our culture more generally. Many people revere the Constitution. Many Americans consider themselves connected, in some important way, to earlier generations. American law today seems like a chapter in a multigenerational project, and its multigenerational character is part of the reason it is valued. To many people, allegiance to the Constitution and a certain kind of respect for the Founding, and for crucial episodes in our history, are central to what it means to be an American. All of those attitudes are deeply incompatible with Jefferson's kind of skepticism, and as long as those attitudes remain widespread, Jefferson's skepticism will always seem to many to be a little like a debating point--clever and hard to answer, but somehow deeply wrong.

   In this Essay, I want to address these issues in a way that responds to Jefferson--that gives a reason for paying attention to the Constitution that ought to satisfy even a Jeffersonian skeptic--but that also accommodates more deeply held views about the Constitution and American traditions, rather than dismissing those views as mysticism or ancestor worship in the way that Jefferson's skepticism seems to dismiss them. The first part of the answer to Jefferson is confession and avoidance: To a large extent, American constitutional law has developed in a way that is independent of the views of the Founding generation. Much of American constitutional law consists of precedents that have evolved in a common-law-like way, with a life and a logic of their own. But it would be a mistake to say that American constitutional law consists entirely of precedents and is independent of the text and the Framers. The text, unquestionably, and the original understandings, to a lesser degree, continue to play a significant role. We cannot escape Jefferson's question by saying that we have left the Framers behind.

   The central answer to Jefferson is that the text of the Constitution provides a common ground among people, and in that way it facilitates the resolution of disputes that might otherwise be intractable. Sometimes, in the familiar formulation, it is more important that things be settled than that they be settled right, and the provisions of the Constitution settle things. The Constitution tells us how long a President's term will be, how many senators each state will have, whether there are to be jury trials in criminal cases, and many other things. Even if the rules the Constitution prescribes are not the best possible rules, they serve the very valuable function of providing an answer so that we do not have to keep reopening those issues all the time.

   These justifications, as I will explain, ought to satisfy even the most iconoclastic Jeffersonian skeptic. Equally important, they fit with our current practices of constitutional interpretation. The common law and common ground justifications make sense of the way we interpret the Constitution, including aspects of our practice of constitutional interpretation that otherwise seem quite problematic. The common law and common ground justifications should therefore be acceptable to anyone who finds our current constitutional order generally acceptable, even if that person wants to reject, a la Jefferson, anything that might remotely look like ancestor worship.

   But at the same time, the common law and common ground justifications do not require anyone to reject more reverential views of the Constitution and the Framers. People who believe, as some do, that the Framers were divinely inspired can accept the common law and common ground justifications; in fact, they have an especially strong reason for accepting those justifications. People who, less dramatically, see themselves as part of an ongoing American tradition that embraces earlier generations also have good reasons to accept those justifications. But people who want to debunk all of that--or who identify with other traditions, religious or ethnic traditions perhaps, that have nothing to do with the Framers--can also accept the common law and common ground justifications. The key idea here is Rawls's famous notion of the overlapping consensus. People who adhere to widely and fundamentally different belief systems, such as different religions, can nonetheless all embrace certain common principles, as can people who reject any religious belief system. That is the kind of justification that adherence to the Constitution and the original understandings requires, and the common law and common ground justifications can, I believe, provide it.

   In Part II, I will describe Jefferson's argument, the answers that have customarily been given to it, why those answers are not fully adequate, and how the common law and common ground justifications might provide an answer. In Part III, I will elaborate on the suggestion that part of the answer to Jefferson is that constitutional law has developed in a common-law-like way that is, to a significant extent, independent of the text and the Framers' understandings. Then, in Part IV, I will describe the "common ground" justification for adhering to the text and original understandings on those limited but important occasions when we do so. In Part V, I will try to show how this "common ground" justification makes sense out of current practices that would otherwise be problematic, and I will discuss other implications of that justification for constitutional interpretation.

2. JEFFERSON'S PRINCIPLE

   1. "The earth belongs ... to the living."

      "The earth belongs in usufruct to the living," (4) Jefferson wrote to Madison in 1789. "[T]he question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water," even though "it is a question of such consequences as ... [to] place ... among the fundamental principles of every government." (5) Jefferson's answer to the question was no: "We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another." (6) Therefore, Jefferson said, "[e]very constitution ... and every law" should "naturally expire[] at the end of 19...