Constitutional Originalism: A Debate.

AuthorFleming, James E.
PositionBook review

CONSTITUTIONAL ORIGINALISM: A DEBATE. Lawrence B. Solum (1) and Robert W. Bennett, (2) Ithaca: Cornell University Press. 2011. Pp. ix + 210. $29.95 (Cloth).

INTRODUCTION

Lawrence B. Solum and Robert W. Bennett's excellent book, Constitutional Originalism: A Debate, calls to mind a famous book in political philosophy, J.J.C. Smart and Bernard Williams's Utilitarianism: For and Against. (4) Both works pair two spirited yet fair-minded scholars in a constructive debate between two competing views prevalent in their fields. Originalism has a reasonable, programmatic, and inclusive proponent in Solum, and living constitutionalism has a capable, pragmatic, and effective champion in Bennett.

In this essay, I shall not judge the debate between Solum and Bennett. Instead, I shall focus on Solum's contribution, interpreting it as a new originalist manifesto. I shall extend the debate, carrying on what I believe is an equally important debate between originalism and what Ronald Dworkin called a "moral reading" of the Constitution and what I call a "Constitution-perfecting theory." (5) Some readers may think that Dworkin's and my approaches are versions of living constitutionalism, but they are importantly different from it. I shall suggest that the prospects for reconciliation between Solum's new originalism and moral readings are greater than those between his new originalism and living constitutionalism. The basic reason is that the new originalists and moral readers share a commitment to constitutional fidelity: to interpretation and construction that best fits and justifies the Constitution. Living constitutionalists characteristically are more pragmatic, instrumentalist, and forward-looking in their approaches to the Constitution and, as such, tend to be anti-fidelity. This essay will further my book in progress, Fidelity to Our Imperfect Constitution, which defends a moral reading or Constitution-perfecting theory as a conception of constitutional fidelity that is superior to originalism, however conceived. (6)

At the outset, I should say that Solum is the ideal scholar for the project of writing a new originalist manifesto. He fairly concedes many of the flaws in the old originalism, with an openness to criticism and a generosity of spirit that are not always present in originalists. He candidly grants that originalism has evolved--that it is a family of theories rather than one coherent, unified view--and that the new originalism is a work in progress (pp. 2, 7-11). He formulates the new originalism inclusively, seeking and articulating common ground among competing theories in a constructive spirit. Solum is somewhat unusual in not coming to his originalism for political reasons. Many conservatives appear to embrace originalism because they believe that it will support conservative outcomes. And many liberals evidently adopt and adapt originalism because they believe that it is their best hope to persuade conservative judges: if you can't beat them, join them. Solum has neither motivation. He seems to come to his new originalism out of philosophic and jurisprudential commitments--not to wage a counter-revolution against the liberal Warren Court, but to correct the philosophical and jurisprudential excesses and errors of Legal Realism and Critical Legal Studies. As a matter of principle, he wants to get the theory of interpretation and construction right. For these reasons, his project has an admirable and demonstrable integrity.

In Part I, I evaluate the claim implicit in the title of Solum's opening chapter, "We Are All Originalists Now." In Part II, I explicate Solum's formulation of the new originalism by contrasting it with Keith Whittington's. In Part III, I explore Solum's development of the distinction between interpretation and construction. In Part IV, I show the misconceived quest for the original public meaning. In Part V, I take up the possibility of reconciliation between the new originalism and living constitutionalism, suggesting that such prospects are better for the new originalism and moral readings. Finally, in Part VI, I make explicit the missing (or implicit) argument for the new originalism from constitutional perfectionism: an argument deriving from the aspiration to fidelity to our imperfect Constitution.

  1. ARE WE ALL ORIGINALISTS NOW? EVIDENTLY SO, YET DEFINITELY NOT!

    In recent years, many have posed the question, "Are we all originalists now?" In response, I have written an article entitled, Are We All Originalists Now? I Hope Not! (7) By contrast, Solum replies with his title, We Are All Originalists Now (p. 1). The answer to the question depends, as he recognizes, on "what one means by originalism" and whether we define it exclusively or inclusively (pp. 61-62) (emphasis in the original). In defining originalism, Solum distills an elegant framework with four basic ideas. It is worth quoting in full:

    * The fixation thesis: The linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified.

    * The public meaning thesis: Constitutional meaning is fixed by the understanding of the words and phrases and the grammar and syntax that characterized the linguistic practices of the public and not by the intentions of the framers.

    * The textual constraint thesis: The original meaning of the text of the Constitution has legal force: the text is law and not a mere symbol.

    * The interpretation-construction distinction: Constitutional practice includes two distinct activities: (1) constitutional interpretation, which discerns the linguistic meaning of the text, and (2) constitutional construction, which determines the legal effect of the text. (p. 4)

    Solum aspires to understand originalism (and, for that matter, living constitutionalism) "in their best light--in their most sophisticated and defensible versions" (p. 5). I shall come back to this Dworkinian-sounding formulation at the end.

    If we define originalism inclusively enough, we might say that we evidently are all originalists now. Indeed, we might just define originalism so broadly that even I would no longer hope that we are not all originalists now! Applying Solum's framework, we would conclude that Jack Balkin, with his self-described living originalist method of text and principle, definitely is a new originalist. (8) Ronald Dworkin, with his moral reading of the Constitution, surely also is. (9) Sotirios A. Barber and I, with our philosophic approach to constitutional interpretation (and my own "Constitution-perfecting theory"), are as well. (10) So, too, are reasonable, bounded, and grounded versions of living constitutionalism. All of these theories evidently can accept the four theses quoted above. Under Solum's formulation, originalism clearly is a big tent--charitable, magnanimous, and inclusionary--rather than the dogmatic, scolding, and exclusionary outlook that we see in originalist works like Robert Bork's The Tempting of America and Antonin Scalia's A Matter of Interpretation. (11)

    But if we define originalism so inclusively--and we are all now in this big tent--it may not be very useful to say that we are all originalists now. We may obscure our differences more than elucidating common ground. For we would persist in most of our theoretical disagreements--it is just that we would say that the disagreements are among varieties of so-called originalism. And the debates concerning interpretation and construction, thus recast or translated, would go on much as before.

    Despite the implication of his title, Solum's own analysis refutes the claim that we are all originalists now. Who, from the standpoint of his framework, is not a new originalist? First, the old originalists are not. As Solum acknowledges, they reject the public meaning thesis and the interpretation-construction distinction thesis (pp. 36, 53-54). For them, interpretation is a matter of discovering determinative intentions of the Framers and construction is illegitimate government by judiciary. Second, many contemporary originalists--those who might not style themselves old originalists but who reject the large role that the new originalism recognizes for construction--are not new originalists. Still, Solum does not exclude these two varieties from the big tent of originalism. He says that only two of the four commitments are necessary for originalism: the fixation thesis and the textual constraint thesis (pp. 35-36). Both of these varieties accept these two theses. And at one point, he refers to the "truism" of the fixation thesis and the "mundane[ness]" of the textual constraint thesis (pp. 53-54). Here, he implicitly admits just how thin and capacious these two theses are, and thus how big the tent of originalism is.

    Third, despite Solum's magnanimous gestures toward reconciliation of the new originalism with living constitutionalism, he rejects many forms of the latter as beyond the pale. He criticizes strong forms of living constitutionalism growing out of Legal Realism or Critical Legal Studies precisely because they are not originalist, even in his capacious sense: they are pragmatic, instrumentalist, and forward-looking, rejecting even the relatively thin constraints that the new originalism would require of them (pp. 40, 50, 74). For them, evidently, there is only construction; interpretation and construction are radically indeterminate. He attributes to such living constitutionalists the views that the text and original public meaning do not constrain interpretation and construction; that constitutional interpretation empowers judges to amend the Constitution; and that justice trumps the constitutional text (pp. 19-20, 47-49, 60). He ridicules many "so-called theories" of living constitutionalism as not being "real theories" but instead "pale imitations, mere gestures and hints" (pp. 74-75). In fact, despite the generally inclusionary tone of Solum's work, I have not seen such spirited attacks on...

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