How does one defend a constitutional theory that's out of the mainstream? Critics of originalism, for example, have described it as a nefarious "Constitution in Exile, " a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?
This objection is overblown. Legal rules don't always directly reflect common agreement; they can also reflect those agreements indirectly, through conventions that operate at a higher level of abstraction. (We can have social agreement that we're bound by the Internal Revenue Code, even though we don't all agree on--let alone remember--everything the Code requires.) So long as we share certain conventions that lead to unconventional conclusions, out-of-the-mainstream theorists can accurately claim to describe our own legal system rather than a foreign or invented one that they hope to impose. The theorists' job is to identify shared premises and to show that they really are shared, even in the face of widespread disagreement at the level of conclusions.
In any case, if this kind of objection did have force, it wouldn't be a problem just for out-of the-mainstream theories like originalism. Virtually no modern legal theory accepts every change in constitutional practice as actually changing the Constitution. Because history moves at its own pace, any theory with meaningful conditions for legal change will often be violated in practice. In other words, any Constitution worth its salt will spend a good bit of time in exile.
Constitutional practice changes. That much is obvious. Right answers on turn-of-the-century law school exams turned into wrong answers by 1937, or 1973, or 2000, or 2014. (1) Vastly different rules and understandings came to be accepted as constitutional law, before each was overthrown and forced to make way for the next. This endless progression of constitutional practices is a "brute fact"--maybe " the brute fact"--"of constitutional history and constitutional interpretation." (2)
What Americans seem to accept in practice, though, they largely reject in theory. Most Americans, including most lawyers, don't think we've repeatedly overhauled the Constitution in the last hundred-odd years. We may understand it differently, but we haven't actually changed it. We don't live in a Fifth Republic, the way the French do: we still use the same old text, with only twenty-seven short additions, and call that our fundamental law.
What should we make of this gulf between theory and practice? One response is to say, with the practicing lawyer, "so much the worse for theory." The courts will decide whatever they decide. There's no use theorizing about it, except to try to predict what they'll do next; and these "prophecies of what the courts will do in fact ... are what [we] mean by the law." (3) A more common response, at least among academics, is to go back to the drawing board, constructing ever more complex legal theories to force the scatterplot of history into a nice constitutional line.
This Article is about a third response: to look at the gulf between theory and practice and say, "so much the worse for practice." Nowadays this view is commonly attributed to originalists--followers, allegedly, of a nefarious "Constitution in Exile," waiting in their subterranean lairs to subdue the populace and abolish the New Deal. (4) Though the "Constitution in Exile" movement may be largely mythical, (5) the idea that constitutional practice may have gone seriously wrong is real enough, and can be found on both sides of the political aisle. Mark Graber, a progressive writing in what he called the "dark times" under George W. Bush, pointed out that followers of "politically disfavored positions" often "produce elaborately detailed and justified constitutions-in-exile" (6)--the "welfare-rights" constitution of Frank Michelman, (7) the "human dignity" constitution of Justice Brennan, (8) and so on. Neither conservatives nor liberals have a monopoly on exile.
Yet the "exile" pejorative can't be dismissed so easily; it stands for a serious criticism that deserves response. A government-in-exile, forced out by circumstances, doesn't always represent those it left behind. It might just be a motley collection of pretenders to the throne. In the same way, a constitution in exile might be the "real" or "true" law, obscured by usurping courts and officials; or it might be just a plan for law reform, an attempt to revise the law under the cover of restoring it. If a constitutional theory asks us to substantially change our practice--if it makes important legal questions turn on the esoteric views of academics, historians, or political philosophers--can it really be an accurate statement of our law? If law is a matter of social practice, as most seem to agree, (9) can there be social practices that hardly anybody in society knows about? How is a constitution in exile even possible?
The question is particularly sharp with regard to originalism, the main target of the "exile" label. Many sophisticated opponents of originalism have claimed (and some of its supporters have accepted) that originalism offers a deeply inaccurate picture of our law. It can't explain changes to our practice over time; in fact, it doesn't even try. Without an adequate theory of our legal system, originalism becomes merely a political effort--flawed or welcome, depending on your view--to change American law into something else. Call this the "jurisprudential objection."
This objection isn't limited to originalism; it can be made against any out-of-the-mainstream theory. If we agree with Justice Brennan that the Eighth Amendment's "essential meaning" protects human dignity, and so bans the death penalty no matter what anyone else thinks, (10) then we need to be sure that it's our Eighth Amendment we're talking about. (How, a practicing lawyer might ask, can the death penalty be unconstitutional when it's practiced in America once every few weeks?) (11) This Article focuses on originalism, partly because it's the most prominent challenger to mainstream legal practice; but we should remember that the same objection has to be met by "progressive" and nonoriginalist theories as well.
Where the jurisprudential objection goes wrong, though, is in assuming that a legal theory needs to explain the everyday details of legal practice. Not all legal rules need to correspond directly to social practices. Instead, rules can be justified indirectly, based on shared higher-order practices from which we derive our lower-order ones. There might be a social practice, for example, of taking the enacted titles of the U.S. Code as binding law. Because that social practice exists, we can successfully conclude (say) that it's unlawful to import certain mongooses, (12) that key-duplicating tools can't be sent through the mail, (13) or that it's legal to possess switchblades on guano islands if you have only one arm (14)--even though few people would suspect all this from observing the day-to-day behavior of officials and judges. In fact, so long as we share the right kind of higher-order practices, it's possible that everyone in a jurisdiction might be mistaken on some particular question of law.
In the same way, so long as we share certain practices that lead to out-of-the-mainstream conclusions, out-of-the-mainstream theorists can claim to describe our own legal system, rather than a foreign or invented legal system that they hope to impose. To be right, though, the theorists have to identify those shared practices and to show that they really are shared, even in the face of widespread disagreement at the level of conclusions. This Article doesn't try to show that any theory, whether originalism or something else, actually succeeds in that task. Its ambition is purely negative: to rebut a common, but mistaken, jurisprudential objection.
If that objection did have force, moreover, it wouldn't be a problem only for those working outside the mainstream. No sensible constitutional theory can actually explain the past, much less predict the future. All such theories distinguish between the law and legal practice, and they require changes in practice to take a certain form--whether as high politics, slow common law evolution, or construction of capacious constitutional text--to effect a valid change in the law. Changes without that form are deemed legally invalid, even if they eventually gain acceptance. Because history proceeds at its own pace, any theory that imposes meaningful conditions like these runs the risk of being routinely violated in practice. In other words, any constitution worth its salt may spend a good bit of time in exile.
THE JURISPRUDENTIAL OBJECTION
Explaining Constitutional Change in Practice
In constitutional scholarship, it's a commonplace that "a theory of constitutional interpretation ... must explain most of the actual practice of constitutional interpretation." (15) A good theory should provide "a persuasive account of legitimate constitutional change," (16) accounting not only for practice as it stands today, (17) but also "as it has existed over the course of American history." (18) A "theory that ignored these changes, or that presumed that constitutional interpretation could go on without these changes," simply could not be "a theory of our Constitution." (19)
Sometimes the practices that matter are the ones we value. According to Jack Balkin, only "some, but not all, of these changes are worthy objects of pride that demonstrate the best features of the American constitutional tradition"; a constitutional theory "should be able...