ORIGINALISM IS A SUCCESSFUL THEORY (IN PART) BECAUSE OF ITS COMPLEXITY: A RESPONSE TO PROFESSOR TELMAN.

• Date: 22 June 2020
• Author: Strang, Lee J.

ORIGINALISM'S PROMISE: A NATURAL LAW ACCOUNT OF THE AMERICAN CONSTITUTION. By Lee J. Strang. New York, NY: Cambridge University Press. 2019. Pp. xiv + 326. $110 (hardcover); $34.99 (paperback)

1. INTRODUCTION

   Professor Telman's review of Originalism's Promise: A Natural Law Account of the American Constitution (1) is thoughtful--it identifies positive contributions made by Originalism's Promise and offers pointed criticisms where Professor Telman believes its arguments fall short. Professor Telman's review is also an excellent example of the genre because it goes further and argues that Originalism's Promise is itself a manifestation of originalism's dire predicament, in Professor Telman's view, its "crisis." (* 1 2) Professor Telman's review continues his scholarly engagement with originalism, (3) and originalism is the better for it.

   Professor Telman's description of Originalism's Promise works hard to be fair. He accurately notes that Originalism's Promise is "carefully reasoned, with many interlocking parts." (4) Professor Telman's description is helpfully peppered with points of departure, as any good review should be. For example, as Professor Telman criticized my argument that American constitutional practice in the early Republic employed originalism to identify and follow the Constitution's fixed meaning. (5 6)

   In addition to the many and variety of particular criticisms Professor Telman lodges against Originalism's Promise, three fundamental and interrelated critiques underlay much of his evaluation. (6) First, Professor Telman claims that my conception of originalism does not adequately acknowledge or deal with stubborn constitutional indeterminacy. (7 8) Second, he contends that the Constitutional Communication Model of originalism is too thin because it hews to a middle road among different conceptions of originalism and this opens it up to "ideologically driven and outcome-determinative" use. (8) Third, Professor Telman asserts that Originalism's Promise works so hard to force the theory to fit (a fundamentally nonoriginalist or eclectic) American constitutional practice that it exemplifies how originalism is fracturing under its complex intellectual "appendages." (9)

   In this Response, I focus my remarks on these three fundamental contentions and argue that Originalism's Promise is an example of a complex theory successfully grappling with the complex phenomenon it is attempting to explain. Its embrace of constitutional construction (with its premise of constitutional underdeterminacy) is a powerful example of the theory better fitting constitutional practice while, at the same time, becoming more complex. Originalism's Promise navigates contemporary originalist scholarship and charts a path that incorporates (what is, to my lights) the best of the extant literature. This too, makes the theory more complex. I then argue that Originalism's Promise exemplifies the complexity that any successful intellectual account of a complex phenomenon, like American constitutional practice, must possess in order to be persuasive to educated audiences. After briefly addressing Professor Telman's post-originalist paradigm claim, in the last part, I address the most important of Professor Telman's particular criticisms.

2. ORIGINALISM IS A COMPLEX THEORY

   SUCCESSFULLY GRAPPLING WITH A COMPLEX PHENOMENON

   1. INTRODUCTION

      Originalism's Promise is an example of a complex theory successfully grappling with the complex phenomenon it is explaining. I support this thesis and respond to Professor Telman's three fundamental claims in this part.

   2. ORIGINALISM IDENTIFIES THE MEANS TO ASCERTAIN DETERMINATE ANSWERS TO (NEARLY) ALL CONSTITUTIONAL QUESTIONS, MAKING IT A MORE COMPLEX THEORY

      Professor Telman claims that Originalism's Promise does not adequately deal with constitutional indeterminacy, (10) and that 1 "seek[].. to constrain constitutional construction" because I "clearly regard]].. it as a threat to legal determinacy." (11) Professor Telman supports his claim with three primary reasons. First, Professor Telman asserts that I "never really addressefed]... Paul Brest's... level of generality problem." (12) Second, he claims that the original methods themselves cause underdeterminacy because they were a manifestation of contemporary "non-hierarchical methodological pluralism." (13) Third, Professor Telman identifies a lack of priority among closure rules as itself a cause of indeterminacy. (14 *)

      Below, I first briefly summarize Originalism's Promise's argument that originalism provides a decision tree to help officials perform their duties faithfully to the Constitution, and that originalism is sufficiently thick that it provides determinate answers to (almost) all constitutional questions. In short, either the original meaning itself, or a subsidiary mechanism of constitutional decision-making, will answer (nearly) all constitutional questions. Then, I directly respond to Professor Telman's criticisms.

      Originalism's Promise's embrace of constitutional construction (with its premise of constitutional underdeterminacy) is a powerful example of the theory better fitting constitutional practice while, at the same time, becoming more complex. Like most originalists, I argued that the Constitution's original meaning underdetermines some constitutional cases, and I provided some of the reasons why that is the case (pp. 31-37, 64-66, 73-83). Originalism's Promise also argued that the Constitution provided a number of subsidiary mechanisms (in other words, in addition to the text's original meaning) to coordinate American national life, especially constitutional precedent and rules of interpretation (pp. 66-141). The rules of interpretation provide additional resources to assist the Constitution's original meaning to coordinate conduct. Precedent, both originalist and nonoriginalist, creates constitutional doctrine that implements the Constitution and provides clearer and more-fulsome guidance to Americans. Third, Originalism's Promise laid out a theory of judicial virtue that is needed to identify and train judges to be able to navigate the complex and challenging tasks that lie before them (pp. 142-157).

      Collectively, these moves have the benefit of helping originalism paint a more accurate picture of our constitutional practice (one in which some original meaning is underdetermined), where there is a fundamental place for constitutional doctrine, and where the craft of judging is highlighted. At the same time, these moves make originalism significantly more complex.

      This Constitutional Communication Model provides robust guidance to federal judges (and other officers). The following is a simplified summary of the Model's decision tree. The first step in any judge's analysis will be whether there is applicable constitutional precedent. If the precedent is originalist precedent, (15) then the judge should follow it. If the precedent is nonoriginalist, the judge must determine whether to follow it, limit it, or overrule it. (16) If there is no binding precedent, then the judge should determine whether there is determinate original meaning. If so, the judge should follow it. If there is underdetermined original meaning (17) and the case falls within the construction zone, then the judge should defer to elected branch constructions (pp. 83-90). This decision tree provides answers to (almost) all constitutional questions.

      * * *

      Professor Telman's first criticism, the level of generality problem, is originalism's purported inability to identify the Constitution's meaning in a principled manner because that meaning may, in principle, be stated at different and inconsistent levels of generality. Originalism's Promise did not spend much time focusing on the level of generality criticism because I do not see it as a powerful critique of originalism, and for two primary reasons.

      First, the Constitution's original meaning itself (18) determines the level of generality. (19) It is possible, prior to investigating the original meaning of a text, that the yet-uncovered original meaning might present itself at a variety of levels of generality. For instance, "cruel" in the Eighth Amendment could embody the abstract principle prohibiting what in fact is cruel, (20) or it could mean what practices the Framers and Ratifiers believed were cruel, or other meanings between these extremes. The relevant question, however, is whether, in fact, the text's original meaning determinatively identified the level of generality at which it is expressed. The answer, in practice, is regularly "yes."

      I showed in Originalism's Promise that the Constitution's original meaning in fact occurs at different levels of generality for different texts (pp. 209-214). For instance, "cruel" has the relatively abstract original meaning of disproportionate to the crime. (21) What is typically not the case, however, is that the texts simultaneously have different meanings at different levels of generality. Cruel, for example, does not mean both disproportionate to the crime and what punishments were considered cruel in the eighteenth century.

      Second, as Professor Telman acknowledges, (22) I argued that when--not if--the original meaning fails to provide a determinate resolution to a legal question, then constitutional construction occurs. Therefore, even if one was unable to identify the original meaning's level of generality, the result is only that the original meaning is underdetermined, hardly a criticism of a theory that accepts construction.

      Professor Telman's second criticism is that "non-hierarchical methodological pluralism" at the Framing and Ratification prevent the original rules of interpretation from "yielding] the legal determinacy that Strang seeks." (23) This criticism is inapplicable to Originalism's Promise because I expressly acknowledged that "the current evidence does not identify how widespread the use of interpretative rules was, the...