Underlying principles.

• Author: Barnett, Randy E.
• Position: Response to article by Jack M. Balkin in this issue, p. 291

In his article, Abortion and Original Meaning, (1) Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. The task of interpretation is to look to original meaning and underlying principle and decide how best to apply them in current circumstances. I call this the method of text and principle." (2)

This is big. Jack Balkin is one of the most consistently creative and innovative progressive constitutional law theorists of our day. That he has been pulled by the gravitational force of originalism is a major development. I know what that force feels like.

MY PATH TO ORIGINALISM: LYSANDER SPOONER

All the time I was doing my earliest writings on the Ninth Amendment and the Second Amendment, I considered myself a nonoriginalist. I concurred with the standard criticisms of originalism that were widely accepted by constitutional scholars: interpreting the Constitution according to the original intentions of the Framers was impractical, illegitimate, and contrary to the intentions of the Framers themselves. Nevertheless, I continued to research and write about the original meaning of the text, which continued to seem salient to me and many others.

Then, quite by serendipity, I came across a reference to Lysander Spooner's 1845 book, The Unconstitutionality of Slavery, (3) in an anthology edited by Sandy Levinson. (4) Having been a fan since college of Spooner's 1870 essay, No Treason: The Constitution of No Authority, (5) my curiosity was piqued. When I looked at Spooner's monograph on slavery, I discovered an approach to constitutional interpretation I had not before considered.

Spooner was responding to the argument of the Garrisonian abolitionists that the Constitution was "a covenant with death and an agreement with hell" because it sanctioned slavery. In particular, he was answering a pamphlet by radical abolitionist lawyer Wendell Phillips entitled, The Constitution: A Pro-Slavery Compact. (6) Phillips had presented excerpts from the recently-disclosed notes of the constitutional convention by James Madison as proof that the Framers had intended to protect the institution of slavery in several passages of the Constitution, passages that seem to allude to the matter without using the term "slavery" or "slave."

In reply, Spooner maintained that the Constitution should be interpreted according to its public meaning at the time it was enacted. As Spooner argued:

We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses some certain fixed, definite, and legal intentions; else the people them selves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing. (7) How then is the Constitution's meaning to be determined? "[T]he only answer that can be given," Spooner concluded:

is, that it can be no other than the meaning which its words, interpreted by sound legal rules of interpretation, express. That and that alone is the meaning of the constitution. And whether the people who adopted the constitution really meant the same things which the constitution means, is a matter which they were bound to settle, each individual with himself, before he agreed to the instrument; and it is therefore one with which we have now nothing to do. (8) Any secret intentions not embodied in the text itself were not binding on later interpreters:

The intentions of the framers of the constitution... have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large. (9) Since the Framers had chosen to use euphemisms for slavery, interpreters were obligated to give these terms their ordinary public meaning, rather than the meaning they would have only if one already knows from extrinsic information that they were intended to refer to slavery.

In addition, Spooner offered a theory of constitutional legitimacy that was startlingly modern in its reliance on hypothetical consent given the impossibility of any literal consent by the people.

Our constitutions purport to be established by "the people," and, in theory, "all the people" consent to such government as the constitutions authorize. But this consent of "the people" exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given. (10) Spooner then made a crucial move: The inevitable fact that actual consent is lacking limits the government to exercising only those powers to which every honest person could be presumed to have consented.

All governments ... that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all or even a very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government. (11) Finally, given this account of legitimacy, Spooner supplemented his original public meaning approach to constitutional interpretation with a rule of constitutional construction he borrowed from a "clear statement" rule for statutory construction that had been enunciated by Chief Justice John Marshall in United States v. Fisher. Here is Marshall's formulation:

Where rights are infringed, where fundamental principles are overthrown, where the general system of laws is departed from, the legislative...