Reply to Koppelman: originalism and the (merely) human constitution.

• Author: Smith, Steven D.
• Position: Article by Andrew Koppelman in this issue, p. 177

Andy Koppelman's provocative diagnosis (1) of originalism, of Jack Balkin, and of disgust gets one thing right and several things backwards. Or so it seems to me. I'll start with the things Koppelman gets backwards. Then I'll say what I think Koppelman gets right, and how he and Balkin make a potentially valuable (albeit partly inadvertent) contribution not only to originalism but to the ongoing experiment in democratic self-governance.

I

Over the last several years, and to the surprise of some, Professor Balkin has proclaimed himself an originalist. He has advocated what he calls the "method of text and principle"--an approach which, by interpreting the Constitution's original meaning to embrace a set of open-ended principles, is able to justify pretty much any results that the most ardently progressive constitutional heart could desire. (2) Less expansive originalists have sometimes expressed skepticism about Balkin's ostensible conversion, and on occasion they have vigorously criticized the version of originalism that Balkin advocates. (3)

Koppelman thinks he perceives in this critical reaction a feeling of "disgust," and it is this perception that informs his assessment of originalism. I confess that I am not perfectly clear on exactly what the originalists' ostensible feeling of disgust (4) is supposed to reveal. Sometimes Koppelman indicates that disgust serves to police the boundary between the human and what might be called the subhuman--to distinguish humans from "animals and animal waste products." (184-185). The larger discussion suggests, however, that disgust reflects a revulsion against the (merely) human--" our animal vulnerability and mortality" (184)--arising out of a yearning for something that transcends the human: "transcendent aspiration," "transcendent ideal," and a "transcendent ideal of justice." (180, 182). So the overall argument, as I understand it, is that originalists feel disgust toward Balkin because he has ostensibly demonstrated (5) what originalists are loathe to admit--namely, that the Constitution "is a human construct" and that "[w]e are, perhaps, all that the Constitution is constituted out of. Its innards are as slimy as ours." (187)

There is in this assessment a valid and valuable point, I believe, which I will come to shortly. In general, though, Koppelman's diagnosis seems ... well, pretty much upside down. It is as if Koppelman has gotten his characters mixed up--he has confused Macbeth with Macduff, so to speak--and thus has ascribed to originalists the qualities and aspirations of their critics, and vice versa.

After all, it has been critics of originalism, not the originalists, who have most often betrayed a powerful yearning (6) for a higher-than-human or transcendent Constitution, accompanied by a dissatisfaction--"disgust," if you like--for the merely human Constitution. Thus, we behold Ronald Dworkin insisting that the Constitution and the law must be viewed as a body of comprehensive and coherent moral principles, fully accessible only to a demigod like Dworkin's Hercules. Dworkin disdains, as unworthy of our respect, a constitution understood merely as the legal expression of a series of political decisions and compromises. (8) Or we observe Larry Sager, who regards the Constitution as a perfect embodiment of justice. (9) Or Robin West, who views the Constitution not so much as a mundane legal instrument as "a source of moral insight and a vision of the just society. (10)

To be sure, not all of those who reject originalism are given to these exhilarating visions (or hallucinations?). Some favor a humbler "common law Constitution" in which meanings evolve historically along with changing values and commitments of the political community. (11) But as one might expect, this more Burkean conception of the Constitution fits awkwardly with a practice of an active and "progressive" judicial review. At some point, it seems, the argument has to be (unless it deliberately veers in an elitist direction) that nine elderly men and women insulated inside a marble building in Washington are more in tune with the current, living beliefs and commitments of "the People" than elected legislators are--or perhaps than "the People" themselves are? That wanton implausibility tends to push progressive constitutionalists down the path of viewing the Constitution as something more transcendent. The Constitution becomes a sort of living deposit of more ethereal principles (12)--principles whose content surpasseth the understanding the mere mortals who actually draft and vote for the words, and which accordingly must in the fullness of time be articulated and refined (and, of course, forcibly imposed) by judges (counseled, of course, by legal scholars). (13)

In short, it is non-originalists who characteristically exhibit contempt for the merely human Constitution. Conversely, originalists make up the party that not only acknowledges but indeed insists on the human character of the Constitution. Originalists are diversely minded, to be sure; but insofar as originalism has a central and animating normative purpose, (14) that purpose, it seems, is to empower people--actual human beings-to debate and deliberate and then adopt constitutional provisions with the confidence that these will mean and do pretty much what the human beings who adopt them understand and intend the provisions to mean and do. (15) Some originalists look to the "subjective" intentions of enactors as the source of these meanings (16); others view the official enactors as working to craft a more "objective" law in accordance with conventional linguistic meanings that the enactors are presumed to understand and use. (17) Either way, originalism treats the Constitution and its meanings as a thoroughly human affair.

This is not to say that originalists cannot believe in transcendent realities and truths. Some do, probably, and some don't. Some originalists surely believe that constitutional provisions are sometimes adopted on the basis of...