WHAT HAS ATHENS TO DO WITH PHILADELPHIA?

• Author: Green, Christopher R.

1. INTRODUCTION

   Lee Strang's Originalism's Promise: A Natural Law Account of the American Constitution (1) weaves together each of the major issues of constitutional theory into a nearly-seamless garment. He promises an account of the Constitution that both fits the views of the early republic, (2) precedent (3) (both originalist (4) and non-originalist, (5) just and unjust (6) ), and today's legal culture, (7) that is normatively attractive, (8) and that fits with the eternal moral principles of the natural law, particularly as articulated by Aristotle (9) and Aquinas. (10) At every turn, Strang explains why his view of the Constitution and of precedent promotes the common good of human flourishing. The sort of natural-law thinking done in Athens is intimately tied to the sort of Constitution-designing done in Philadelphia--and both are closely related to the crafting of precedent at One First Street.

   Strang's gift for concise-yet-comprehensive-and-comprehensible storytelling makes his whole account go down very smoothly. The book would be an excellent component of a seminar on constitutional theory. All of the rough edges are sanded off; a very detailed outline of parts, chapters, sections, and sub-sections (occasionally even sub-sub-sections or sub-sub-sub-sections!) makes the structure of Strang's argument absolutely crystal clear. Those wondering when he will confront particular theoretical issues have a very detailed map. Chapter one gives an excellent, concise history of originalism; chapter two sets out Strang's version of originalism, especially its relation to precedent; chapter three defends its fit with practices today; and chapter four defends its fit with the natural law.

   Strang and I are both good friends and co-authors. (11) I agree with him, moreover, on quite a bit: the centrality of the meaning expressed by the constitutional text pursuant to original legal conventions, (12) the Article VI oath as an anchor of current office-holders' constitutional obligations, and constitutional self-definition with terms like "now" and "this Constitution." (13) If I had to put a number on it, I would say we agree on about 93% of the important issues in constitutional theory. Conventions of law-review commentary being what they are, though, this essay will focus on where we disagree. While in considerable sympathy with Strang's views both on the Constitution itself and on natural law, I think the relationship between these two areas is much looser than Strang does. Put simply, his seamless account of the Constitution, judicial decision-making, and ethical reality needs more seams.

   While the Constitution's Preamble makes clear that the "general welfare" is one of its purposes, this is not how it secures its moral obligation upon current-day oath-takers. The Constitution secures that obligation, not by attempting to convince us of its ability to promote well-being as an instance of "law," but solely through contingent self-presentation in the phrase "this Constitution." Assessing the normative worth of the Constitution is, of course, important for lots of reasons. Understanding the nature of law and the ways the Constitution does or does not promote human flourishing will be important for living under the Constitution as well as we can. We also need a developed understanding of ethics in order to exercise the various areas of discretion the Constitution affords to us, to decide whether to hold office under it, and the like. Interpretively, though, we need much less. A moral assessment of the Constitution is relevant to constitutional interpretation only insofar as the Constitution gets the minimally passing grade required to undergird officeholders' promises. The Constitution is not so bad that, like a Nazi regime, it would justify lying to authorities. As long as this is so, misrepresenting the Constitution's contents in the guise of interpretation will be wrong.

   Precedent likewise calls for much less moral theory, as I see it, than it does on Strang's view. Those with the power to "say what the law is," including the law of the Constitution, need an ethics of assertions. Judges and other officeholders who speak and write about the Constitution must know whereof they speak, which means having enough evidence. By engendering reliance interests, precedent raises the amount of certainty that interpreters need in order to speak the truth about the Constitution. An increased burden of proof when we overrule precedents means that some precedents will survive that are probably wrong, even pretty clearly wrong. Views of constitutional requirements that would upset more apple carts demand more certainty from interpreters before officeholders decree them. Precedent cannot, however, alter what renders constitutional claims true or false, no matter how much better they might correspond with justice and the natural law than does the Constitution itself.

   Letting Athens represent natural law thinking, Philadelphia represent the Constitution, and One First Street represent precedent, I ask what each of the three has to do with the other two. My inspiration, of course, is Tertullian, who asked in the early third century:

   What does Jerusalem have to do with Athens, [ ] the Church with the Academy, the Christian with the heretic? Our principles come from the Porch of Solomon, who himself taught that the Lord is to be sought with simplicity of heart. I have no use for a Stoic or a Platonic or a dialectic [i.e., Aristotelian] Christianity. After Jesus Christ we have no need of speculation, after the Gospel, no need of research. Once we have come to believe, we have no desire to believe anything else; for the first article of our faith is that there is nothing else we have to believe." (14) Unlike Tertullian's rejection of any need for Aristotelian Christianity, I do not categorically disavow any use for an Aristotelian constitutionalism, or an Aristotelian system of precedent, or a precedentially-encrusted Constitution. I am, though, more skeptical than Strang on each of these three questions: What has Athens to do with Philadelphia? What has Philadelphia to do with One First Street? What has Athens to do with One First Street? The remaining sections tackle these three questions in turn.

2. NATURAL LAW AND THE CONSTITUTION: WHAT HAS ATHENS TO DO WITH PHILADELPHIA?

   1. Necessary Morality, Contingent Constitution

      I would stitch a first seam into Strang's relatively-seamless garment between ethics and the Constitution. Strang's very subtitle--"A Natural Law Account of the American Constitution"--combines two very different kinds of phenomena. The natural law is a part of ethical reality, and exists necessarily--i.e., in all possible worlds, or at least in all possible worlds with human beings. (15) Ethics has to be the way it is; the "laws of nature and nature's God," as the Declaration of Independence terms them, do not change based on what happens in human history. But the American Constitution is a radically contingent phenomenon, both in its genesis at Philadelphia and the state ratifying conventions, and in its place in American society today. There are possible worlds--even close possible worlds--where our Constitution does not exist at all. The Constitution did not have to be written the way it was, and it does not have to have the place in American culture that it has today. An account of contingent, constitutional phenomena in terms of necessary ethical reality will be inherently incomplete, much like giving a purely mathematical account of biology or geology would be.

      I am sympathetic to the idea that law is, as Aristotle suggests and Aquinas and the tradition following him explain in much more detail, a device for coordinating human flourishing and the common good of everyone in society. But the very generality of natural law means that it can only be applied to our particular Constitution--and especially to originalism--by making empirical claims that seem very hard to support. Strang's argument in subsection 4.5.5 ("The Law-as-Coordination Account of Originalism Makes Sense of the Framing and Ratification in a Manner Nonoriginalism Cannot") (16) is the key move in the book on this front, and it moves much too quickly. He argues that nonoriginalism is "an inherently poor way to overcome coordination problems" because it is '"stuck with' the Constitution's text," (17) and because

      [a] reasonable legal system would not identify one legal authority and task it with creating positive law that resolves coordination problems, and then task another legal authority with the job of attributing different meaning to the law's text to resolve the same coordination problems. Yet, that is how nonoriginalist methodologies approach the Constitution. (18) This passage does not confront the most plausible non-originalist methodology. A methodology of nonoriginalism that gave original meaning a very strong presumption, for instance, but allowed the Supreme Court to depart from that meaning once it had become obsolete, might neither have to be stuck with the text, nor would it be touted as solving the same coordination problems as at the founding. Proponents of this sort of nonoriginalism could instead claim the right to solve new coordination problems that the text's original meaning had engendered. Fans of this sort of nonoriginalism might then argue that because Article V's supermajority and bicameralism thresholds are too high--two-thirds of two separate federal houses and three-fourths of state legislatures or conventions--the Court could, by departing from the text and avoiding the holdout problems that Article V would require, obtain a better equilibrium more effectively.

      To be clear, I do not think this sort of method of achieving a superior coordination would be likely to be effective. The reason for my skepticism, though, is that current American culture reveres the constitutional text in a way that would tend to make...