Originalism and Legitimacy

Originalism and Legitimacy

SCOTT SOAMES*

ABSTRACT

This Article expounds and defends a distinctive originalist theory of the legal

content and interpretation of American constitutional law against the non-

originalist view presented by Richard Fallon in Law and Legitimacy in the

Supreme Court. In addition to developing a strong but workable conception of

what f‌idelity to the Constitution demands, I rebut the familiar claim that original-

ism does not have the resources to reach some normative results that have widely

been taken to be constitutive of any acceptable theory of constitutional law.

TABLE OF CONTENTS

I. WHAT IS LEGITIMACY? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

II. FALLON’S MORALISTIC CONCEPTION OF THE SUPREME COURT . . . . 244

III. AN ORIGINALIST OVERVIEW OF THE CONSTITUTION AND

CONSTITUTIONAL LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

IV. ONE VERSION OF ORIGINALISM . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

A. Positivistic Originalism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

B. Normativity and the Limits of Positivistic Originalism . . . . . . 255

V. ORIGINALISM: CRITICISM AND RESPONSE . . . . . . . . . . . . . . . . . . . . 258

VI. FALLON’S THEORY OF CONSTITUTIONAL INTERPRETATION . . . . . . . 271

IX. REFLECTIVE EQUILIBRIUM AND MORAL FIXED POINTS . . . . . . . . . . 272

X. ORIGINALISM, BROWN, AND THE FOURTEENTH AMENDMENT . . . . . . 275

CODA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

*Scott Soames is a member of the American Academy of Arts and Sciences, Distinguished Professor

of Philosophy at the University of Southern California and Director of its School of Philosophy. His many

books include The World Philosophy Made; Rethinking Language, Mind and Meaning; What is

Meaning?; Philosophy of Language; and Understanding Truth. © 2020, Scott Soames.

241

Originalism is a family of theories about the content of American statutory and

constitutional law and the role of the judiciary in applying it. In assessing these

theories, it is useful to begin with the preamble to the Constitution.

We the people of the United States, in order to form a more perfect union, es-

tablish justice, insure domestic tranquility, provide for the common defense,

promote the general welfare, and secure the blessings of liberty to ourselves

and our posterity, do ordain and establish this Constitution for the United

States of America.

1

This trope, We the people. . . do ordain and establish, in which the

Constitution f‌ictionally presents itself as written by the American people, introdu-

ces a contract between its author-sovereigns and the government off‌icials author-

ized to act on their behalf. Writing in this way to a broad and indeterminate

population which they hoped would endorse their product, the real authors of the

document—Gouverneur Morris, the drafting committee at the Philadelphia con-

vention, James Madison, and others—were inviting their audience to buy into

their vision, thereby turning it into a reality. Because some of the document’s pro-

visions were hotly contested, it was not obvious that they would. But once the

Constitution was ratif‌ied, winners and losers of different debates came together to

support the f‌ledgling republic. A fascinating case of a f‌iction struggling to

become fact, the Constitution is authoritative because we, its putative authors,

take it to be.

I. WHAT IS LEGITIMACY?

This sketch touches a key theme of Richard Fallon’s fascinating book. In dis-

cussing the legitimacy of law, he distinguishes moral legitimacy, which depends

on moral fact, from sociological legitimacy, which depends on the cognitive and

emotive attitudes of various subpopulations and the population as a whole. Since

one can describe the normative attitudes of others without committing oneself to

endorsing or repudiating them, one can describe a legal system as sociologically

legitimate without endorsing it oneself. The same cannot be said for moral legiti-

macy. To say that a legal system is morally legitimate in Professor Fallon’s sense

is to say that the fact that it requires, or forbids, certain actions counts as a moral

reason worthy of serious consideration in deciding whether or not to perform

them.

Why, apart from fear of punishment, do people obey the law? One reason for

obeying some laws is that everyone else does. In the U.S., drivers are, unless oth-

erwise instructed, legally required to drive on the right side of the road; in the

UK, driving on the left is mandated. Either way, the conformity of others pro-

vides one with a reason to conform oneself. Because the value of coordinated

behavior on the road outstrips the chaos of uncoordinated behavior, we willingly

1. U.S. CONST. pmbl.

242 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:241

obey. In this case, different rules are equally good, if they are obeyed. In other

cases, different rules are better than having no rule, even though certain rules are

much better than others. Because of this, the legitimacy of a legal system typi-

cally depends on more than the mere fact that its way of coordinating behavior is

better than having no coordination at all.

There are three main sources of sociological legitimacy of a legal system. One

is prudential; many must judge the system to be reasonably effective in enhanc-

ing their welfare and that of those they care most about. The second source of le-

gitimacy involves substantive justice. Many must think that the system enhances

the general welfare, relative to other achievable systems, that natural rights are

protected in important ways, and that the burdens and benef‌its the system imposes

are not grossly unfair. The third source of legitimacy is participatory. Many must

believe that the law-making process is, to a reasonable degree, representative of

the governed, and so capable of being inf‌luenced by them.

Sociological legitimacy is a graded notion. Citizens of all minimally legitimate

systems recognize some reasons, apart from the fear of punishment, for obeying

the law; in more highly valued systems, their motives for uncoerced compliance

are stronger. But perfection along any dimension of legitimacy is not required.

When a system ranks high in all dimensions, citizens will feel a strong prima

facie obligation to obey its laws. But a system need not reach this level to be min-

imally legitimate. It is enough that people accord enough authority to its direc-

tives to take themselves to have some substantial reasons, beyond fear of

punishment, to obey them.

Still, the participatory dimension of legitimacy is especially important for the

American legal system. Because we are a democratic republic with a written con-

stitution def‌ining the scope and limits of governmental authority, and the obliga-

tions of public off‌icials authorized to act on our behalf, the sociological

legitimacy of our public institutions is hostage to the degree of f‌idelity to the

Constitution the populace demands, which remains substantial. Since the

Supreme Court is uniquely charged with preserving the Constitution, its sociolog-

ical legitimacy is heavily dependent on judgments about what that f‌idelity

amounts to. It is our difference on this point, more than anything else, that marks

the debate between Professor Fallon and originalists like me.

He and I may also have differences about moral legitimacy and its relation to

sociological legitimacy. Unlike the latter, the moral legitimacy of the Supreme

Court is tied to facts, not opinions, widely shared or not. Although the relevant

facts are broadly moral, not all such facts are equally relevant to the moral rela-

tionship between a people and its governing institutions. Those that are clearly

relevant include the effectiveness of the system in advancing the welfare of indi-

viduals, the degree of substantive justice it achieves, and the procedural justice of

its law-making processes. These non-cosmopolitan normative facts provide a ba-

sis for evaluating the moral relationship between a nation and its people, without

signif‌icantly assessing moral and political relationships between the nation-state

and other states, or between it and the people of the world.

2020] ORIGINALISM AND LEGITIMACY 243