Originalism as popular constitutionalism? Theoretical possibilities and practical differences.

AuthorStrang, Lee J.

INTRODUCTION

The common perception is that originalism and popular constitutionalism are incompatible. For example, historian Saul Cornell has recently argued that "[p]opular constitutionalism was, and remains, closer in spirit to modern ideas of a living constitution, and is therefore ultimately incompatible with all forms of originalism." (1) Supporting this perception is the widely-shared opinion that most advocates for popular constitutionalism are liberal (2) while most originalists are conservative-libertarian. (3) Not only is this the perception, it has a basis in reality. Looking at the names of leading originalists and popular constitutionalists (4) reveals that there is significant overlap between originalism and conservatism-libertarianism, and between popular constitutionalism and liberalism.

In this Article, I argue that the common perception that originalism and popular constitutionalism are incompatible is mistaken. Instead, I show that there is no uniquely correct answer to the question of whether and/or how originalism is compatible with popular constitutionalism. Stated more formally, there is no necessary analytical connection or disjunction between the two theories. Instead, because of the theoretical compatibility of the two methods, the conceptual distance between popular constitutionalism and originalism depends on the conception of originalism one is utilizing. (5) With some conceptions, the differences between popular constitutionalism and originalism loom large. With others, the similarities emerge prominently.

I argue that whether originalism converges with popular constitutionalism is contingent on the form of originalism in question. I describe five axes upon which originalism pivots toward or away from popular constitutionalism. These five axes are: (1) whether originalism embraces departmentalism in place of judicial interpretative supremacy; (2) whether originalism requires judicial deference to popular interpretative judgments; (3) the extent to which the Constitution's original meaning permits the popular branches to engage in authoritative constitutional interpretation; (4) the extent to which the popular branches authoritatively construct constitutional meaning when the Constitution is underdetermined; and (5) whether originalism includes a place for nonoriginalist precedent. (6) My description of these five axes shows that, in practice, originalism has failed to converge with popular constitutionalism.

This raises the question, however, of why originalism is identified with conservative constitutional theory and popular constitutionalism with liberal constitutional theory. I therefore offer three reasons why, despite the theoretical compatibility of originalism and popular constitutionalism, they do not converge in perception and practice.

My argument proceeds in three parts. First, I describe popular constitutionalism as a movement in the American legal academy. Second, I show that, despite their theoretical compatibility, in practice, originalism's relationship to popular constitutionalism depends on the conception of originalism one adopts. Third, I suggest three reasons for the liberal-conservative divide between originalism and popular constitutionalism despite their theoretical compatibility.

  1. THE (RECENT) RISE OF POPULAR CONSTITUTIONALISM

    Popular constitutionalism is the umbrella label for a family of constitutional theorists. (7) Popular constitutionalism's central commitment is to a greater popular role in the practice of constitutional interpretation. (8) Correspondingly, popular constitutionalists reject the dominant view--judicial interpretative supremacy (9)--which holds that the Supreme Court's interpretations of the Constitution are authoritative. (10) This description fits scholars from Richard Parker (11) through Bruce Ackerman, (12) Mark Tushnet, (13) Larry Kramer, (14) Reva B. Siegel and Robert C. Post, (15) Jack Balkin, (16) and Rebecca Zietlow. (17)

    Judicial interpretative supremacy, in its strongest form--the one most often the target of popular constitutionalists (18)--is the claim that the Supreme Court is the authoritative arbiter of constitutional meaning whose interpretations are binding on the other branches of government (19) and on the American people. (20) Judicial interpretative supremacy is clearly the dominant view on the Supreme Court, (21) as it is in the legal academy. (22) There is also strong evidence that Americans perceive the Supreme Court as possessing interpretative supremacy, at least in run-of-the-mill cases. (23)

    Beyond this consensus, however, popular constitutionalism fragments. Popular constitutionalists diverge primarily on the mechanisms by which nonjudicial constitutional interpretations manifest themselves and the relationship of those interpretations to judicial interpretations. (24) Some popular constitutionalists maintain a significant role for the judiciary and argue that popular movements ultimately manifest their constitutional visions in judicial opinions that "ratify" the movements' achievements. (25)

    Others shunt the courts off to the side and propose that a significant proportion of constitutional interpretation occur in the popular branches and/or in the populace itself. (26) Some of these scholars suggest that social movements are the mechanism by which popular constitutionalism manifests itself. (27) These social movements work through a number of vehicles--political parties, electoral politics, litigation, advocacy groups, judicial appointments--to push their agendas through the elected branches and the courts. (28) Perhaps most provocatively, Dean Kramer argued that popular constitutionalism may occur via direct popular action such as mobbing and petitioning. (29)

    Popular constitutionalism as a distinct scholarly phenomenon (30) likely began with Sanford Levinson's Constitutional Faith, published in 1988. (31) The movement gained steam in the 1990s with a spate of scholarly interest. (32) The culminating work in this genre is Larry Kramer's The People Themselves: Popular Constitutionalism and Judicial Review, (33) published in 2004, to much acclaim and criticism. (34)

    The historical narrative frequently told by popular constitutionalists, however, argues that popular constitutionalism was the initial American form of constitutional interpretation. (35) They claim that popular constitutionalism was America's method of constitutional interpretation at the Founding, and that it continued in prominence until after the New Deal. (36) Only in the twentieth century, the story goes, did judicial supremacy come to dominate the American legal system. Popular constitutionalists focus on important historical moments in American legal and political history. For example, Dean Kramer reviewed the Founding, the rise of Jacksonian democracy, President Lincoln's challenge to Dred Scott, and the New Deal. (37)

    Popular constitutionalists have asserted a variety of normative bases for popular constitutionalism, (38) though the clear favorite is an appeal to democracy. (39) Popular constitutionalists argue that, by privileging Supreme Court constitutional interpretations, democracy is undermined and the Supreme Court's countermajoritarian position is aggravated. (40) As Larry Kramer summarized: "The Supreme Court is not the highest authority in the land on constitutional law. We are." (41)

    Some popular constitutionalist scholars have attempted to explicitly tie originalism to popular constitutionalism. This occurs in a couple of ways. One is to argue that originalism is itself a manifestation of popular constitutionalism. On this reading, originalism is the legal correspondent to a conservative political--Republican Party--and religious--evangelical Protestant and traditional Catholic--social movement in the United States. (42)

    The second mode of tying originalism to popular constitutionalism is the most interesting, and it is primarily the work of popular constitutionalist Jack Balkin. (43) Professor Balkin has argued that originalism, properly understood, is of-a-piece with living constitutionalism. (44) He calls this the method of "text and principle." (45)

    According to Balkin, fidelity to the Constitution requires interpreters to adhere to its text's original meaning and the principles underlying that meaning. (46) However, the Constitution's original meaning and principles will regularly not determine the outcome of constitutional issues, (47) making them subject to constitutional construction. (48) It is in this zone of construction that popular constitutionalism takes over and constructs meaning. (49)

    Balkin claimed that his synthesis incorporates the normative attractiveness of both originalism and popular constitutionalism: it is faithful to the Constitution's determinate original meaning while at the same time responsive to current democratic popular movements. (50)

    Before proceeding, it is important to note that my description of popular constitutionalism is thin. (51) It leaves out much of the nuance that populates the literature. Relatedly, I focused on American popular constitutionalists who in turn concentrated on the United States Constitution. Therefore, I have omitted theorists that resemble popular constitutionalists, but who are distinct enough not to merit discussion.

    For example, Professor John Gardner has recently argued that written constitutions, in principle, must change. (52) Gardner utilized the tenets of legal positivism and argued that, though written constitutions are possible, (53) they degrade very quickly because of the practice of judicial application of the written constitution in cases. (54) According to Gardner, through judicial interpretations of the original written constitution, constitutional law will inevitably change and come to incorporate, as part of the written constitution, the judicial decisions interpreting and applying the original written constitution. (55)

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