The New Republic

Superb overview of originalism and arguments for and against. A (the) money quote: "...The problem with originalism is that, however useful it may be as a form of criticism, it cannot support a positive program. During the 2010 election, Americans may have expressed anxiety about the size of government, but in general Americans adore big government and do not want to see it repudiated in the name of some abstract idea. Every political challenge to the New Deal administrative state has gone down in flames, and today Americans look to the federal government to protect them from terrorists, financial scams, economic downturns, environmental degradation, educational failure, poverty and sickness in old age, natural disasters, and foreign competition. As a governing doctrine, the small-government ethos of originalism does not have a constituency...."

- basman

January 14, 2011 at 1:25am

". . . although it’s not clear what’s wrong with skipping provisions that are no longer in effect" It's perfectly clear to me and to a lot of other people. What's wrong with it is that the skipping of such provisions serves to buttress the impression that the Constitution is a timeless and sacred text that always, at every given moment, embodies a kind of supreme wisdom. In fact, its wisdom is in its structure rather than its content. and the skipped provisions tell us that historical crisis and changes in our values and national assumptions are not something alien to the Constitution but are part of its broader meaning.

- ironyroad

January 14, 2011 at 5:25am

The problem with originalism is that it is an outright fraud. The examples are numerous but one will suffice: Bush v. Gore.

- roidubouloi

January 14, 2011 at 7:03am

It's refreshing to read such innocent fifties liberalism, as if preserved in amber. All liberal court decisions are justified as necessary because we have to keep up with "the times." Would Mr. Posner accept conservative Court decisions by Rehnquist, Scalia, Roberts, et al. if they only justified them on the grounds that they were necessary to keep up with "the times"? Unconsciously, Mr. Posner takes it upon himself to decide whatever it is that "the times" demand. Let others interpret the Constitution. Mr. Posner interprets Reality.

- AlanVann

January 14, 2011 at 8:06am

I agree with AlanVann's criticism of Posner, although I think that originalism is hogwash. Part of what has created the opening for the originalist nonsense is the very shabby and sloppy practice of describing the Constitution as "evolving with the times." That is not at all a sensible description of common law jurisprudence. It is the fact that in a common law system judges "make law" within the context of deciding cases and controversies. The people who wrote the Constitution were common law lawyers steeped in a centuries-old legal tradition of judicial interpretation and construction. They had every expectation that American judges, as part of a common law system, would apply that same legal tradition in interpreting and applying the Constitution to situations that could at best be either dimly perceived or more likely unimagined at the time the Constitution was written. That is why the Constitution is so short (in sharp distinction for example to the EU proposed constitution which is a mammoth document). They understood perfectly well that the Constitution would not exist as a self-executing document outside of history but brought along with it an entire history of law. Had they not had that confidence in an existing system, they would have had to do a lot more writing to resolve every possible issue they could think of. If one needs evidence, the best evidence is the very act of Supreme Court construction of the Constitution and its application as the supreme law, overturning acts of congress and of legislatures if that is the necessary conclusion. There is nothing in the Constitution, not a word, that suggests literally this possibility. But Chief Justice Marshall, a fine lawyer and contemporary of the drafters, so applied the Constitution in Marbury v Madison. He did so because he was part of a common law system and the system, embraced by the Constitution, required that judges interpret the law in a specific case. As the Constitution is declared to be the supreme law, it follows that any official act in contravention of the Constitution must be null or nullified. Accordingly, the originalist fantasy, apart from its rather obvious and ceaseless manipulation in favor of particular outcomes desired by the right, is completely ahistorical. It ignores completely the original intent of the Framers that the Constitution be applied and construed in the manner of the common law. It is unfortunate that this is described for popular consumption as a "living" or "evolving" Constitution. The Constitution does not evolve, life and experience evolve, and the document has to be applied to current social, technical, and economic reality. There is no possibility of making sense of it if we pretend we are a nation of four million, on the Atlantic littoral, communicating by letters that take weeks to arrive, and traveling around on horses and in horse-drawn carriages. There were no Glock semi-automatic pistols in 1788 and no one imagined there would be. Does the Constitution say anything about this? No. Leaving aside that the Framers themselves did not share a single brain and hence did not necessarily have a shared intention, did the Framers have a specific intention about Glock pistols. Obviously not. Is there any means of applying the Constitution to the problem posed by Glock pistols without thinking about the purposes of the Constitutional structure as a whole, as well as the words, history, context, and extant thinking in 1789 and since? No. The only way to do it is to do what common law lawyers do, and that is most certainly not limiting their analysis to an largely unknowable, invented idea about what some group of people, or even one person, long dead specifically intended about a problem he could not have imagined. It is a pity that people who ought to know better, like Posner, persist in so mischaracterizing the process of the common law.

- roidubouloi

January 14, 2011 at 8:29am

Basman, Don't know if you will get back to the Chait thread on Loughner where we were debating, but I suspect you will be back here. Thanks for a stimulating and challenging time of it. I can honestly say that I would not want to have to face you in court.

- roidubouloi

January 14, 2011 at 10:08am

Just took another look at Posner's bio. If he were professor of law at the University of Michigan, I would really be shocked at his sloppiness. Given that he is professor of law at an inferior place, the University of Chicago, one can understand and must be somewhat tolerant of his difficulties.

- roidubouloi

January 14, 2011 at 10:12am

Two comments. First, is originalism a fraud? Hypocrisy yes, fraud no. The (Republican) majority of the Court stopped the vote count and appointed GWB because, according to the majority and their supporters, prolonging the outcome of the election any longer would weaken the eventual winner, cast doubt on the legitimacy of the government, and potentially jeopardize American security. Of course, originalism had nothing to do with it. How do we know? The most drawn out Presidential election in our history occurred in 1800 and involved many of the founders (originalists all), including the eventual winner Mr. Jefferson. Then again, the election of 1800 included many manipulations by the participants and their supporters, providing ample precedent for the Court's manipulations in 2000. Second, Posner employs a tried and true debating device by identifying originalism with small government (good) and everything else with big government (bad). Originalism has nothing to do with big vs small, and everything to do with one side's preferences for government actions vs the other side's preferences. Posner isn't so much forsaking originalism as acknowledging it doesn't promote his preferences.

- rayward

January 14, 2011 at 10:26am

Thanks Roi. Coming from you, that's especially high praise. You're probably being be more nice than truthful but I for one refuse to believe it.

- basman

January 14, 2011 at 11:22am

...Just took another look at Posner's bio. If he were professor of law at the University of Michigan, I would really be shocked at his sloppiness. Given that he is professor of law at an inferior place, the University of Chicago, one can understand and must be somewhat tolerant of his difficulties.. You devil!

- basman

January 14, 2011 at 11:35am

You might as well ask why the written law matters. Constitutions should be difficult to amend. Some "rights" are deemed off limits to the whim of the masses. Inventing from whole cloth new constitutional "rights" and powers is what has caused the problems. If the masses really don't want the original, limited federal government, there will be more than enough support to amend. The problem is each side wants to make new "rights" when barely a simple majority supports the position. They don't want to have to wait until a great majority forms to allow amendment. Perhaps it would have been best to leave the federal government fairly unrestrained except in protection of speech and voting. So, let the Supremes do the right thing and declare outside the Constitution Social Security, Medicare, etc., and you'll have all the support you need for a proper amendment. Then we'll be more or less like the U.K.

- karlwk

January 14, 2011 at 11:57am

...". . . although it’s not clear what’s wrong with skipping provisions that are no longer in effect"... ...It's perfectly clear to me and to a lot of other people. What's wrong with it is that the skipping of such provisions serves to buttress the impression that the Constitution is a timeless and sacred text that always, at every given moment, embodies a kind of supreme wisdom.... Irony, is this logical or sensible? It's otiose to read dead provisions. It's no secret that the American Constitution has been amended. I can't see how reading that Constitution in its present form, an amended form to be sure, enhances or reinforces originalism. What American doesn't know of the Amendments? Plus the thoery of originalism, pace Posner, is "Originalists believe that the Constitution—the set of rules that structure and limit government—has the meaning that was ascribed to the original document by those who drafted and ratified it, as modified by the various amendments, as understood by those who drafted and ratified them."

- basman

January 14, 2011 at 12:11pm

Originalism is a fraud, rayward. First, the possibility of interpreting the Constitution according to its "original meaning" does not exist? Who you gonna ask, Ghostbusters? Whose contemporary understanding controls? Madison? Hamilton? Jefferson? What about what the ratifiers understood at the time? Does it matter whether Madison or someone else communicated his particular understanding to them? Or does there intention, as the legal adopters, as opposed to his intention mean nothing? This quickly leads to a whole difficult discussion of the meaning of law and the jurisprudential act of interpreting and applying law. That is a complicated discussion, but the one thing that is absolutely certain is that there is no solution to the problem in "orginalism." What is equally true is that the people who wrote and adopted the Constitution were part of a legal culture that did have a certain reasonably well understood process for interpreting and applying law. What they widely expected is that courts as they understood them would act in the manner of courts as they understood them. In the case of common law courts and, broadly, the analogical method they apply, that is by no means reconcilable with Scalia's claims about originalism. It is even more a fraud because those who claim to be originalists quite clearly do not even attempt to apply their own doctrine in any coherent or consistent manner. Bush v Gore isn't enough? Try Citizens United and point to me the provision of the Constitution that confers the rights of natural persons on corporations. Or, give me some contemporaneous legal theory or decision that fails to distinguish between corporations and natural persons. Originalism is merely a rhetorical cover for opportunism that cannot even pretend to as much method or history as we normally expect in common law jurisprudence. Hence, not just hypocrisy, but fraud.

- roidubouloi

January 14, 2011 at 1:50pm

Alanvann I think your concise critique poses an inaccurate reading of Posner. Keeping up with the times per se is not the justification for decisions of any stripe. Changing times brings the pressure of changing circumstances and transformations of values. Your Constitution's open ended provisions, those that are, invite their application to what’s changing. I suspect that Posners is his father’s son in thinking, less acerbically, that in hard cases something beyond the law is driving decisions—such as personal ideology, philosophy or predilection. There is no other way to account for the spate of SCOTUS’s 5:4 decisions. The harder the case the more this is so. Originalism itself operates this way, as Posner points out. Political and ideological arguments taking the form of legal ones about original intent comes from both sides of the political divide. So where is Posner off in saying this; and/or where does Posner say what you say he says?

- basman

January 14, 2011 at 1:50pm

Sorry for all the usual typos. :-(

- roidubouloi

January 14, 2011 at 1:51pm

basman, I think the Amendments were included in the House reading. But the problem is that the Republican performance has to be understood as emerging from a background of paranoid propaganda in which the Constitution, the the threatened virgin of American wisdom, is daily being ravished by the Obama administration and the Democratic Congress. The fact that the same document contained some pretty ugly stuff once upon a time, and that stuff was removed and/or superseded, suggests a certain contingency despite the survival of the basic republican small 'r' constitutional order. I don't know that it's logical or sensible, but it seems as logical as pretending that the Constitution as it stands is and was a perfect text.

- ironyroad

January 14, 2011 at 7:57pm

The problem with originalism is precisely the way that it tries to mask problems of adjudication: a conceptual apparatus for legal thinking that is several hundred years will, at minimum, require considerable extrapolation in application to legal facts that it never pretended to pre comprehend, so even if one imagines that intent can be so adequately and thoroughly retrieved, it doesn't mean that this intention can simply be applied to the facts of the case to determine a judgement. The law isn't some a priori understanding that needs but determinative judgement to subsume the givens of a case to absolute, lucid, and otherwise completely adequate provisions. The problem of intent collapses in on itself if it is made to bear all the weight of judgement: to the extent that intent is not already imminent and determinate in the language, exactly what sense does it have? Are intentions equated with what the law is supposed to say or what it is supposed to do? Language is often a compromise between intentions, whether it's a matter of contending concerns of one drafter or disagreement among several. What exactly happens to intention when it becomes plural or if it is always already plural? How does one hear it or them? Do we hear it speak without frequent equivocation? Better not to lean so hard. You wouldn't know this from John Roberts's umpire analogy, but that's perhaps why he's Chief Justice. That's why originalism sticks around: it's quite convincing in getting people not to think about the problems judges face and to believe that there is a simple and singular fidelity to the law and thus to history that's not often far from their own, common-sense anticipation of what the law should say.

- bayardgb

January 14, 2011 at 9:44pm

I agree, bayard, particularly with regard to the "common-sense appeal" of originalism to those who have had no exposure to the problem of judging. That's why a think the response has to be much more common-sensical than "the living constitution" or "the evolving constitution." Those do not comport with common sense notions about law. To the legal cognoscenti who are familiar with the problem, these might be a convenient shorthand, but they are very unpersuasive to the unitiated. Better to my mind to talk about the impossibility of original intent, either in discerning it our in applying it to something undreamt of at the time. That, I think, is something people can understand. But then you have to explain further that law is applied to achieve its purpose even though the situation could not have been anticipated. (That too is a simplification, but one that I think is persuasive.)

- roidubouloi

January 14, 2011 at 10:36pm

irony, originalists have no problem with the amendment process. Some fringe types think that the reconstruction amendments are illegitimate, but they read those of course. They are happy to admit that the Constitution has changed through the amendment process. They think it's the only way it can be changed. I'm not bothered by leaving off superseded portions, so long as one is consistent in that approach across the board. I don't happen to know if they were or not.

- JakeH

January 14, 2011 at 10:41pm

Sometimes it doesn't hurt to take a look at the original document itself. It doesn't take all that long to read it, and a great deal of what is in its text is and always has been either entirely without controversy or so freighted with controversy that it was amended to end the controversy. As concerns the "original" text, most of the interpretive struggles over the years have involved the reach of the commerce clause and the first, second and fourth amendments. Most of the most recent interpretive struggles have involved the reach of the "due process" and "equal protection" clauses of the fourteenth amendment, enacted after the Civil War and nearly 100 years after the original text and the "Bill of Rights" (the first ten amendments). A second thought: The identities and political origins of "originalists" change over time. When I went to law school --nearly fifty years ago-- the Supreme Court Justice most closely identified with "originalism" was Hugo Black, particularly as regards the reach and meaning of the first amendment. Liberals loved his interpretation of the first amendment then. Do they ever wonder how he would have ruled on the election financing case if he was still on the court now?

- lsernoff

January 14, 2011 at 11:18pm

I think, roid, I agree with you that intent is impossible in a particular sense. I follow Derrida's "Signature, Event, Context" in saying that context is never complete or saturated, that recourse to these, while important, doesn't give the text a fixity of meaning that reduces the remaining task to "applying" it. I don't think the task in countering originalism as ideology is to pull back the veil or simply come up with a counter-brand. The term that pairs with originalism is "activism", where originalism is offered as a counter to activism but serves as its alibi in a decision like Heller. I think any practical alternative between these two needs to displace originalism as ideology and method by disrupting the originalism/activism binary, perhaps by asking whether it was even the original intent of the Framers that original intent delimit the understanding of the document. Why does originalism only seem to emerge after activism? We have the figure of the "Constitution in exile", but doesn't that still mean that value of original understanding was there before it went into exile? Was the expectation of the Framers that future generations would come to no better or at least different understanding of the Constitution without breaking faith with it?

- bayardgb

January 15, 2011 at 11:46am

"I think any practical alternative between these two needs to displace originalism as ideology and method by disrupting the originalism/activism binary . . . " This is the point I was trying to make, bayard, that when we allow sound jurisprudence to be characterized as "activism" or its surrogates, "living Constitution," "evolving Constitution," we fairly invite the reaction in the form of "originalism." I also tried to make the point that the intent of the Framers was quite clearly not originalism as that term is wielded by the judicial right-wing. As common law lawyers, the understood that this is not the way the common law works. Thus, the demand for fidelity to original intent completely undermines an fidelity to the original intent.

- roidubouloi

January 15, 2011 at 1:03pm

Basman has Posner right I think. He comes from the realist/pragmatist school that thinks that legal theory is window dressing for essentially political disputes. He doesn't like originalism, because it's a fundamentalist theology willing to sacrifice practical reality at the altar of the dubious principle that the opinions of people long dead are paramount (which, as both he and roi point out, is not consistently followed anyway). Given that general outlook, I'm not surprised that his anti-originalism discussion goes like this: Look, originalism is just intolerable in the real world. If we had a more realistic amendment process, that would be one thing, but we don't, so it falls on judges to, as he frankly acknowledges, change the document through legal opinions, call it "interpretation," and thus keep the ship of state on the true and steady course, bravo, amen. Anyway, I think that those are basically the views of the father, and the son's views have a similar flavor.

- JakeH

January 16, 2011 at 1:16am

Roi, maybe it's my education at the University of Chicago Law School, but I was having trouble following your "common law" theory. Please be patient with me! What do you mean by "common law"? Do you mean that large body of law made up by judges and then adhered to through stare decisis? (Or, as Black's puts it, "The body of law derived from judicial decisions, rather than from statutes or constitutions.") If so, the originalist will respond -- pretty persuasively I think -- that judges aren't authorized to make it up when dealing with a text. Rather, unlike the common law judge who may invent the rule, make policy according to his own lights, in the case of first impression with no pretense at interpretation, the judge interpreting an authoritative text is thought obligated to, in some plausible sense, *adhere* to it or *follow* it. This is especially so, they might argue, in the case of constitutional interpretation, because the legislature is incapable of overruling constitutional decisions -- at least not without inviting a constitutional crisis. It's hardly self-evident that the founders, though steeped (as we still are) in a common law system, would have thought it appropriate to bring that sort of adjudication -- where judges pretty freely make it up in their capacity as on-the-spot quasi-legislators -- to statutes or constitutions. Some, like David Strauss in his recent book called "The Living Constitution" (a phrase I know you hate!), make an argument that might be similar to yours that we should *analogize* constitutional interpretation to the common law process -- that they involve a similar style of adjudication. But, I still have some difficulty getting past the originalist criticism of that, which is that texts are a different kettle of fish. Judges are clearly authorized to make up the common law -- not so with statutes and constitutions. Strauss is a University of Chicago Law School professor besides, so I know you won't put much stock in his opinion! Maybe you are referring to the process of deciding cases according to precedent -- even cases that involve statutes and constitutions. I'm not sure that "common law" = "stare decisis," but in any event, the principle of stare decisis is not necessarily anti-originalism. It doesn't command a loose and expansive style of interpretation, as opposed to a strict and narrow one. Today's originalists get down on stare decisis, because when they stare at what's been decisis, they cringe and want to undo it. Their opponents emphasize stare decisis because they want to hold on to what they've got (e.g., Roe v. Wade), even though overturning precedent in Brown v. Board of Education was among the Court's finest hours. Anyway, nobody thinks that stare decisis is, to use the phrase repeated in countless decisions, an "inexorable command." I think that a neutral observer would probably say that, whatever your judicial philosophy, stare decisis is good because it promotes stability and coherence and bad insofar as it solidifies bad law, and so it should be seen to raise a genuine hurdle but not an insurmountable one. I think you're right to point out that the Constitution is short and vague rather than long and detailed. It's also worth pointing out that it's meant to last. These are good observations to begin with, and go a long way toward defeating vulgar originalism. People who say, for example, that the Constitution doesn't mention abortion or doesn't mention, as you alluded to, judicial review, neglect the obvious fact that it's theoretically possible that those specific things fall within the document's vague language of general principle and plausibly flow from the logic of those principles. Most things don't get a specific mention. No specific example of speech, for example, is discussed in the First Amendment, just as no specific weapon is mentioned in the Second. That doesn't mean, of course, that those provisions are effectively silent and meaningless. I know that you think originalism, in practice, is "a fraud," and I agree that originalists don't always follow their own supposed theoretical commitment. Affirmative action, campaign finance reform, and Bush v. Gore are cases in point. But, let's put that to the side and consider the theory as opposed to the practice. Originalism has appeal, I think, because we crave a rudder when thinking about constitutional adjudication, and are uncomfortable with the idea of unelected judges just making it up out of thin air -- substituting their personal preferences for what might fairly be thought to be the personal-preference-neutral requirements that flow from an authoritative text. That's one reason why the Ninth Amendment hasn't gotten much traction. A provision that says that there are other rights not mentioned doesn't give you enough clues as to what they might be. The current law is that such rights are those that we might say are "fundamental" insofar as they are implicit in the "concept of ordered liberty," which an Eric Posner type would say is just more words. Originalists, when considering unenumerated rights -- such as the right to bear arms as against state and local authorities (unenumerated, because the Bill of Rights was originally thought to apply only to the federal government) -- ask whether the founders would have found the right "fundamental" and insist upon a specific level of generality. Liberals, on the other hand, tend to want to be more expansive, feeling more free to see within the Constitution vague commands of political justice and seeing themselves as properly authorized to essentially philosophize and hold forth on what political justice requires given the framework and all that came before. This resembles the view of the great American legal philosopher Ronald Dworkin (of neither the University of Chicago nor the University of Michigan), who analogized legal decisions to writing a chain novel, where the two goals of the exercise are to fit your installment with all the previous installments (such as precedent) and also make the novel better as a whole. (Perhaps this also resembles the "common law" argument you were making.) He called these twin imperatives "fit" and "justification." Originalists don't like the justification piece because, unlike Dworkin, they are pretty firm legal positivists -- the law is the law, however disappointing, morally or otherwise -- and don't see it as their job to justify any of it. (Hence the umpire analogy.) Cass Sunstein (formally of the University of Chicago) calls these two views "fundamentalism" (originalism) and "perfectionism" (liberal, Dworkin-style interpretation, which, Sunstein says, characterizes the Warren Court). I think these are pretty good labels. He's not a fan of either, although, as a former clerk for Thurgood Marshall, it's probably fair to say that he's more personally sympathetic with perfectionism. Anyway, he argues instead for "minimalism," which is a sort of cousin of "pragmatism." The minimalist emphasizes stability and stare decisis as substantively good things. He says, decide cases narrowly, don't go overboard, keep things as small and uncontroversial as possible. This echoes the pragmatist's rather airy suggestion to, as Richard Posner put it in his book on the subject, "do the reasonable thing, all things considered." Sunstein regards "fundamentalists" as ever more "activist" than perfectionists were. I say "were," because there aren't any perfectionists left on the Court today, which is why Sunstein insists on saying that there aren't any "liberals" on the Court, but rather conservatives and moderates only. He says that originalists are more "activist" because their theory would wreak more havoc -- they would undo tons of well-established precedent. They *do* undo well-established precedent. They are just as likely as "perfectionists" -- more so, perhaps -- to overturn not just precedent but legislative actions too (e.g., Chicago's handgun ban). Their theory is "radical" insofar as it would seem to exclude a lot of very well-liked and well-established doctrines, among them sex equality, among them substantive due process and incorporation and reverse incorporation -- the legal sleight of hand that makes the Bill of Rights apply to the states via the 14th Amendment's due process clause, and makes the equal protection clause applicable to the federal government via the 5th Amendment's due process clause. Originalists don't like substantive due process -- Scalia has fun making fun of it. They think it's a contradiction in terms -- that "substance" and "process" are opposites. And yet undoing susbtantive due process would leave the federal government constitutionally free to discriminate against citizens in egregious ways and would leave the states and local governments free to violate the Bill of Rights (including the Second Amendment!) with impunity. I realize I'm going on without a point. I'm curious, though, roi, to have you expand on your theory and answer my questions about "common law." I'm also curious to see what you or anybody thinks about all the above business -- about Sunstein, Dworkin, etc. I'm of many minds on this stuff. I guess I gravitate most frequently to a now not-so-popular notion called "soft originalism." It's not a very grand or complicated theory, but it takes the originalist's point about the authority of judges, and it's essentially positivist in nature. I think we can afford to be positivists, because we have pretty good positive law, and I find positivism most intellectually congenial. If our law were grossly unjust, we could resort to St. Augustine's idea that an unjust law is no law at all, but I tend to think that the rule of law requires that we resort to that idea infrequently and only in egregious cases. I tend to fall under Dworkin's spell when I read him, but I have trouble ultimately sharing his intellectual convictions. His idea, which he regards as important to his theory, that there are single right answers to vague legal/moral questions, for example, seems fanciful. Soft originalism resembles, I think, what we actually do. It says, let's have a look at, first of all, the text, and, second of all, the relevant history, and let's try to figure out, with some objective detachment, what *principles* are fairly contained within the document. Next, let's try to reason about those principles in a lawyerly fashion to apply them to the instant case. In that process, let's be just as general -- no more, no less -- than the document itself. When the document is specific -- for example, as to the required age for the president -- let's stop there and just do what it says. (We could get expansive on even that provision, and adjust it for changing life expectancy, which makes a certain sort of sense, but it would plainly violate the text, which the soft originalist won't do.) When the document is general, let's treat it that way. For example, an originalist might want to confine the equal protection clause to racial and maybe ethnic classifications, because that's mainly what the ratifiers had in mind. They certainly had no notion of sex equality. And yet the language does not confine itself to race. Rather, it sets forth a general principle about equality before the law. Even if the ratifiers didn't appreciate the applicability of that principle to sex, they didn't enact their prejudices. Rather, they enacted a principle that might be fairly thought to transcend their prejudices and which, we might decide today in light of changing viewpoints, is *better* served by recognizing that people of different sex, just as people of different race, must be seen as equal before the law. On the other hand, the soft originalist will be persuaded that we should not understand a word to mean something it just didn't mean at the time. The soft originalist will be interested in the history not as a precise command but as a context to help understand what words mean and what vague provisions were "getting at," and will be reluctant to break from that. This is the sense in which they're "originalist." But they're also "soft," in that they will not place a great deal of stock on contemporary applications of the principle, as they will recognize that (1) those applications were not enacted into law, (2) they might be logically infirm, (3) they might be ignorant of some later relevant facts, and (4) they might be ignorant of some later persuasive argument. Some will argue that this approach leaves open the door for results-oriented jurisprudence -- that it's too indeterminate. But any theory will be indeterminate to some degree. The process, no matter how it's done, does not lend itself in hard cases to easy answers. But I think this is a way to *argue*, and some arguments are better than others. If the argument is strong along these dimensions, I think both lawyers and laypeople should see the outcome as legitimate. If the argument is weak along these dimensions, it's cause for suspicion.

- JakeH

January 16, 2011 at 3:20am

"They had every expectation that American judges, as part of a common law system, would apply that same legal tradition in interpreting and applying the Constitution" Look who's the Originalist now.

- karlwk

January 16, 2011 at 12:27pm

Jake, I am going to have to read and re-read that a few times to get the whole drift, but I think I can respond to your query about the "common law." Common law is not just a body of law, particularly judicial precedent, it is a type of analogical reasoning that endeavors to fill in the blank spots that are inevitable as new circumstances and problems arise. This is in fairly sharp distinction to civil law, the Roman style that prevails on the continent of Europe, where the effort is made to codify in positive law a response to as much as possible. In a common law country, the effort to codify everything is not only thought to be pointless, but undesirable, as it prevents consideration of solutions in the context of actual problems when, according to the theory of common law jurisprudence, the issues and consequences are posed in starkest relief. That is what underlies the requirement of "case and controversy" as the necessary context for a judicial opinion. There should not be advisory opinions as law is best made when faced with the necessity of decision. It is not the case that the only law considered and reconsidered by common law courts -- including courts of equity, a second system for addressing problems unsuccessfully addressed by the first -- is judge-made law. There is a long history, antedating the Constitution, of judges construing statutes and trying to figure out how to make sense of them in the context of an actual case or controversy. A good jurist will pay attention to the words, the historical context in which they were written and the problem that the drafter was trying to address, legislative history, and the place the particular law occupies within the firmament of statute and judge-made law. And the extent of the judicial intervention will very. Sometimes the law is contradictory or becomes so in a particular context. Sometimes there is a clear lacuna. But common law judges do not stop at the edge of the statute and say, "There be demons." They make law as necessary to address the concrete problem. They are circumscribed by statute, precedent, and the particular facts of the case. They are wisely admonished not to rule more broadly than necessary as this stretches the meaning of "case and controversy," but judicial modesty is not a sufficient description of the common law process. So, my general point is that the people who wrote the Constitution were not just thinking about common law, they were immured within it. It is what law meant to them. And that was not just a body of positive law and judicial decisions, but an entire approach to judicial decision-making. They had every expectation that the Constitution, although the supreme law controlling all other law, would be interpreted and applied in the manner of the common law. Originalism attempts to treat the Constitution as if it were a civil law code. The irony of this is that this misapplication undermines the very meaning of the Constitution by wresting it from its common law moorings and giving it a meaning grossly at odds with the intentions of the Framers. Thus, it undermines the very purposes of the Constitution while loudly proclaiming fidelity to it. They Framers intended not a precise meaning to everything in every context, but that the Constitution be construed and applied in the manner of the common law. It is a process, not just a body of law. I do of course have high regard for the University of Chicago Law School although, in law as in economics, I think it is too overtly ideological and that this ideology affects even those who might be considered not entirely of the "Chicago school." I do not think it a strength of that institution, rather I find it a weakness, that we can readily identify a certain suite of ideas as belonging, if not uniquely then distinctly, to Chicago. And I do find their legal scholarship inferior to what emerges from the University of Michigan. I think the latter, apart from being my legal alma mater, is a much more intellectually lively place.

- roidubouloi

January 16, 2011 at 2:08pm

I think it was Lee Bollinger, my contracts professor now the president of Columbia University, who on the first day of class broke the news that any notion that, in our system, judges only apply law and do not make law was absurd. This came as a great surprise to most of us who had arrived with a sort of naive but generally held view of what law is and how it operates.

- roidubouloi

January 16, 2011 at 2:12pm

Interesting conversations and contributions by all. Now I'm not an attorney. My only formal academic experience with studies law proper was criminal law and that was fairly rudimentary. I claim no expertise beyond any intimate experiences I have had in my life. (come to think of it they have been relatively extensive what with business, wrongful death, etc.) Doesn't the tension of contentions arise from the fact that the Constitution is a religious document with the temporal details to be determined? It seems to me that your common law advocacy is simply another effort at original intent when attempting to quantify the context from which the framers created and thus by virtue of divining motivation ratify the true nature of foundational principle?

- jacko

January 16, 2011 at 3:22pm

"It seems to me that your common law advocacy is simply another effort at original intent when attempting to quantify the context from which the framers created and thus by virtue of divining motivation ratify the true nature of foundational principle?" This question was directed at roidubouloi.

- jacko

January 16, 2011 at 3:24pm

Jacko, I think there is a difference between "original intent" in the sense of an intention to be part of a judicial process with a long history behind it and the sense in which Scalia and the rest use the term, as the intention of the Framers with respect to particular judicial outcomes. It's sort of like the difference between a game of baseball in which the intention is that the rules of the game be followed (and even that requires arbiters) and a game of baseball in which the intention is who wins the game. Scalia claims that he knows what the Framers intended about the winner in any given case. He doesn't, not least because they did not have a specific intention of that type, it is unknowable if they did, and it would be plural and the subject of contention even amongst them (as there is no single mind responsible for the document). But the fact that Scalia's notion of original intent is chimerical is almost besides the point. What the Framers laid out is a set of rules of the road, no more self-executing than baseball without umpires. It was their intention that real human beings would figure out how to make sense of those rules in the context of their own social, economic, political, and technical reality. Why? Because that is exactly what common law judges had been doing for centuries, both with positive (statute) law and judge-made (common) law. The document is not organic, the process of living with the document is organic. That is the genius of the common law. The best way to understand the Constitution in my opinion is to look at it as entirely a description of who is to decided which sorts of questions. It can be a matter within the purview of the Congress, the president, the courts, state governments, or individuals. In some cases, there is, so to speak, overlapping jurisdiction, in which one actor is permitted to decide so long as not trumped by another. In other cases, the jurisdiction is considered exclusive. Thus, for example, when it comes to the First Amendment, there are matters that are irrevocably assigned to the individual because the Framers believed, with lots of good reason, that the best total outcome for society is achieved when individuals are left to decide these matters, speech, religion (thought and conscience), for themselves. They did not imagine that this assured the best or a just or a perfect outcome. Only that the greatest assurance over time of achieving the best outcomes was to leave these matters in the realm of the individual. Inevitably, because the Constitution is a sort of jurisdictional map of who decides what, there are going to be boundary disputes. Interests run into each other and collide. The general "patches" of jurisdiction are anchored by certain core concepts about which there would have been little dispute then and one hopes today as well. As you move outward from these, it becomes less and less clear whether the matter lies within the jurisdiction of one or the other, and no one would have thought about the particular fragment of the boundary. And the boundary is fractal, it can never be finally decided to exist exactly here and not there. Someone then has to decide and the Constitution gives that authority to the courts. The analogical reasoning that common law courts employ is designed to make sense of the whole and that is just what the Framers expected them to do. That means not just reading the words and trying to imagine what James Madison thought or what James Madison would say were he standing here. It means considering the purposes to be served by the division of authority/jurisdiction and making a judgment about what outcome in the particular case is most consistent with those purposes and, if applied analogically as precedent, will not lead to other outcomes inconsistent with those purposes. That's it. That's all there is. That is the process of common law judging. Someone here asked the question why it is not just a matter of the "living Constitution" to accord a private right to bear arms when none was "intended" by the Framers. The answer is given both by the purpose of the Second Amendment, a communal right to organize for self-protection, and by the problems created if the boundary of that right is extended. Arms are not words. Both carry risk, but the risk of unregulated firearms is direct and immediate. Thus, the community has a powerful interest in regulating firearms even while the communal right to organize for protection is respected. The Roberts/Scalia Supreme Court drew the boundary in a manner that extends well beyond a communal right to organize for protection while seriously constraining the ability of the community also to protect itself from harm by individuals not "bearing arms" as part of the communal organization. That makes it a very bad decision with little foundation in the Constitution as understood at any time in the past 220 years. In contrast, consider Roe v Wade, the favorite whipping boy of the right. I do not believe that any judge, other than one very far from the mainstream of Anglo-American jurisprudence, would seriously contend that an unborn human is a "person" within the meaning of the Constitution, and the court held the it was not. Thus, uness you have a religious belief in the personhood of fetuses, there is no basis for claiming that the interests at stake are those of two persons, the mother and the fetus. That, however, is a private religious belief. Some of us have that belief, many or most do not. Accordingly, it is not within the bounds of the Constitution for the state to impose that religious belief, peculiar to some people, upon everyone, because freedom of religion is guaranteed to all of us, not just some of us who believe particular things. At the same time, the court recognized that, even though the fetus is not a person and does not have "rights," the state and the public are not without an interest. Reasoning analogically in the manner of common law courts, the court can observe that terminating a pregnancy and causing the death of the fetus minutes or a day before it would be delivered is difficult to distinguish from infanticide, and that we have a communal interest in protecting the lives of infants. We do not permit people to kill their infant children even though they are their children regardless of what religious belief might motivate them. At the other extreme, the court observes that an embryo is far from being a fetus and that it imposes a large burden on the mother to force her to carry to term when there are safe means of terminating the pregnancy. Thus, they conclude that the state has very little in the way of an interest to protect while the individual, the pregnant women, has a very strong interest in disposing of her own person. After looking at the extremes, they have to figure out how to reconcile them and so they come up with the rule of trimesters or fetal viability. To those unfamiliar with common law, this seems like an extraordinary invention. Nothing in the Constitution talks about the trimesters of pregnancy or of pregnancy itself. But it is not extraordinary. It is exactly the sort of thing that judges do all the time when they must reconcile conflicting interests that are clear at the extremes but unclear in the middle. They adopt a rule of time or distance under which, depending on the passage of time and whether people have timely exercised their rights, one or the other interest prevails. There are many instances in the common law of rights lapsing when people fail to exercise them in a reasonable time. The court concludes, correctly in my opinion, that freedom of religion and of due process gives the individual a surpassing right to dispose of her own person, a right that cannot be controlled by the state in the absence of a significant state interest that emphatically does not include an interest in the soul of the fetus, that being a matter of faith. The fact that the state's interest matures along with the maturation of the fetus then leads to a result that seems arbitrary to those unfamiliar with our legal system. It is to some extent arbitrary, but the job of the judge is to arbitrate.

- roidubouloi

January 16, 2011 at 5:00pm

Hmmm, abortion is okay because the definition of life is religious. I don't fret over abortion, but that argument for Roe vs Wade is rather a stretch.

- karlwk

January 16, 2011 at 6:57pm

roidubouloi: Thanks for your extensive reply. There are some things that I need to ponder a bit. For instance grundnorm ( thanks luis ) and the validity of expediency within and beyond such frameworks. You proposition with an element of simplicity that I am finding difficult to accept for various reasons. Anyway, thanks. If I have anything to contribute it will be done.

- jacko

January 16, 2011 at 7:46pm

I agree with Roid's conception of common law adjudication, and I agree that the common law process was inevitably and necessarily the manner in which constitutional interpretation would take place. Common law jurisprudence emphatically is not judges simply making up the law as they see fit according to their own predilections and without regard to the constraints of constitutional and statutory provisions, and/or precedent. In fact, Jake, what you describe as “soft” originalism is a common law approach to constitutional interpretation. It also is the way that the Supreme Court has, for the most part, approached constitutional interpretation. The putative divide between “originalism” and a “living constitution” is a fiction. No Supreme Court Justice seriously believes that we can know the “intent” of the framers or the ratifiers of the Constitution, or that if we could, we would be bound by such “intent.” (Even Scalia would say that “intent,” where discernible, is relevant only where the legal text is vague or ambiguous.) Nor am I aware of any Supreme Court panel or individual Justice that has advocated a “living Constitution” in the sense of enabling the Court to make up constitutional law in a manner completely untethered to the constitutional text or precedent. The real divide is between a narrow and a broad construction of constitutional provisions, e.g., a narrow or broad construction of the power of the federal government under the Commerce Clause, a narrow and a broad construction of the bill of rights, and lesser or greater amount of deference the Court should afford the legislature in determining whether a legislative enactment should be invalidated under the Constitution. Where the Justices prefer to limit the power of the federal government, or to limit the scope of a right protected by the bill of rights, as the current “conservative” Justices are wont to do, they will invoke originalism or textualism because, obviously, neither the framers nor the text will have anticipated the specific issue before the Court. Where the Justices prefer a broader interpretation of federal power, or a broader interpretation of individual rights, as the current “liberal” Justices are wont to do, they will invoke a “non-originalist” or “non-textualist” methodology. There can be a reasonable debate about whether the Constitution should be construed narrowly or broadly. But it is not really a debate between “originalism” and a “living Constitution.” It is an ideological debate that seeks to expand or contract the Constitution in conformance with one’s political/ideological agenda. “Originalism” (or more properly “textualism”) serves the agenda of restricting the power of the federal government with regard to commerce while expanding the power of government with regard to restricting individual rights. Non-textualism serves the opposite agenda. That said, I must say that originalist/textualist members of the Court are the more cynical. Where it serves their agenda, they will manipulate the concept of originalism, as in the Heller case, or abandon it altogether, as in the Citizens United case. Dhurtado

- NR143296

January 16, 2011 at 11:35pm

Though I believe the Court has generally applied some version of Jake's "soft" originalism in its constitutional jurisprudence, that is not to say that it has not sometimes been so narrow or broad in its construction as to lack fidelity to the Constitution. That too is, of course, a matter of opinion about which reasonable people could disagree. Even though, as a matter of public policy, I support a woman's right to choose whether to carry a pregnancy to term, I have never been comfortable that such a right is protected by the Constitution. By the time Roe v. Wade was decided, the right of reproductive autonomy had already been established, though not without some intellectual gymnastics. But whether that right unconstitutionally infringed by laws prohibiting abortion depends, as Roid suggests, on whether a fetus is a person who has a right to life, or, is at least an entity that has some moral claim to life. To say that the Constitution does not define fetuses as persons is not sufficient. The Constitution does not define "person" at all (other than to count slaves as 3/5's of a person in order to give the slave states more voting power). Thus the answer to the question whether a fetus has some moral claim to life that must be balanced against the right of reproductive autonomy MUST come from outside the Constitution. That determination is not merely "religious," any more than the determination that you and I are persons is merely religious. Otherwise, non-religious people would have no standing to determine who is a person entitled to the law's protection. We do have that standing, but the answer is not found in the Constitution. Dhurtado

- NR143296

January 17, 2011 at 12:27am

"Hmmm, abortion is okay because the definition of life is religious. I don't fret over abortion, but that argument for Roe vs Wade is rather a stretch." There is no dispute that even an embryo is alive. An ovum is alive. But there is also no responsible legal argument that embryos are persons. The interest of the state, if any, must lie elsewhere. The only interests expressed by those who, for example, are opposed to the destruction of embryos in medical research are essentially religious. They even talk explicitly in terms of "sanctity." These are no interests that are cognizable by the state under the First Amendment, at least to the extent that they cannot be imposed on anyone not holding this view where personal liberty, the liberty to dispose of one's own person, is at stake. Not really very complicated, but obscured by the blizzard of religious rhetoric generated by abortion-rights opponents.

- roidubouloi

January 17, 2011 at 12:33am

"The Constitution does not define "person" at all . . ." But the Constitution speaks in terms of the rights of persons. Hence, it is necessary to decide who is a person within the meaning of the Constitution. The determination of who is a person within the meaning of the Constitution is not only not "religious" but cannot be. The answer is found in the purposes of the rights accorded in the Constitution and the legal history of legal personhood both before and after the adoption of the Constitution. The judicial right is so far confused about this simple point that it has recently, in Citizens United, allowed that corporations have the constitutional rights of people. Bizarre. This must be distinguished from a decision that corporations must be treated in a certain manner in order to protect the rights of actual persons. No, the Roberts court thinks that corporations are people too. Not only bizarre but irreconcilable with Scalia's phony claims about orginal intent. Of course, nothing is reconcilable with Scalia's phony claims. That's what makes them phony.

- roidubouloi

January 17, 2011 at 12:40am

There is no such thing as a "person" within "the meaning of the Constitution." The Constitution refers to "person," but does not define "personhood." The understanding of what a "person" is must, perforce, come from outside the Constitution, just as the definition of "speech" or "religion" must come from outside the Constitution. The notion that a fetus is a "person" is not necessarily religious at all, any more than the notion that an infant human or adult human is a person is necessarily religious. An athiest can, consistently with his or her denial that there is a god, believe that a fetus is a person. Dhurtado

- NR143296

January 17, 2011 at 2:10am

An atheist or theist can believe whatever they want about personhood. Juridical personhood is a question of law, and there is no legal history or tradition to suggest that when the Constitution speaks of persons it could be including fetuses therein. Your notion that the meaning of person lies "outside the Constitution" is correct only in the sense that none of the words used in the Constitution is defined there in as is often done in modern contracts and legal codes. That does not mean, however, that the words used can be defined with reference to any body of thought that one likes, such as religious thought, be it atheist, theist, or denominational. The body of thought that is the source of meaning for the words used in the Constitution is the entire body of English and American common and statute law that preceded it. This is among the consistent mistakes of originalism, supposing that the Constitution stands as an isolated legal work rather than as just one more piece, albeit a special piece, of a large corpus of law. It is not possible to conclude on the basis of that corpus of law that a fetus is a person within the meaning of the Constitution and there is no serious legal argument that it is. Googling "legal inheritance by a fetus" leads to this work, "Abortion, Moral and Legal Perspectives," by Jay L. Garield and Patricia Hennessey. There is useful discussion there of earlier American case law that makes clear that American legal tradition did not regard an unborn fetus as a person within the meaning of the law. One would indeed look "outside the Constitution" for guidance as to construction, just as a good jurist will always look outside the language of a particular statute or case to give context and meaning to the words used there. This is not at all the same thing as looking to some other body of thought, e.g. religious thought, for guidance as to construction.

- roidubouloi

January 17, 2011 at 1:47pm

The point that I think I am not making clearly enough is that law is not merely a collection or words. It is also a set of practices and of decisions with concrete consequences. One cannot understand common law, including the Constitution, by reference only to words. Both the practice and the cumulative set of outcomes are necessary along with the words in order correctly to discern the law.

- roidubouloi

January 17, 2011 at 1:51pm

"But there is also no responsible legal argument that embryos are persons. The interest of the state, if any, must lie elsewhere." Agreed, but I see no authority in the Constitution permitting this to be decided at the Federal level. As I see it, this is what the 10th is all about; this issue should be decided by the States. Yeah, I might like it decided at the national level, but I see no legal justification for it to be so.

- karlwk

January 17, 2011 at 2:42pm

The holding of Roe v Wade is that this is a matter that is not to be decided either at the Federal level or at the State level but is one of those matters that individuals must determine for themselves. One of the problems with the abortion "debate," if it can even be called that, is that both sides speak in terms of a "right to abortion," and, of course, there is no such right mentioned or even alluded to in the Constitution. Hence, the opponents are able to characterize this as having been invented by the court. This short-hand description leads to a great deal of intellectual mischief, as what the court was protecting was not the right to abortion, but the right of persons to dispose of themselves, of their minds and bodies, without interference from the state, particularly as to matters that are both profoundly personal and profoundly inflected with religious belief, in the absence of a compelling public interest. The court finds that there is no such interest with regard to an embryo that could justify interfering with the right of a woman to dispose of her own person and to decide whether or not to be a mother. Hence, the matter must be left to the conscience of the individual although, as with all medical practice, the state can act to ensure safety and honesty in the provision of care. Prior to the 14th Amendment, it is likely (really certain I think) that states would have been regarded as having the freedom to regulate or prohibit abortion within the boundaries of their own state constitutions, because the Constitution was understood to protect individual liberties only as against the federal government. That understanding changed with the 14th Amendment. Thus, the more aptly labeled "right of privacy" the emerges from the First and Fifth Amendments is held to restrict the states as well. To that extent at least, the Tenth Amendment is no longer of any consequence.

- roidubouloi

January 17, 2011 at 2:54pm

I don't know Roid. Seems like you apply situational antiseptics to the import of words. Especially when it comes to context and the carry forward characterized as common sense precedent. I might take issue with the notion that a fetus would have been regarded as having such little weight in the scheme of historical sensibility simply because there was no direct reference. The unborn have always had a status which leans heavily toward a reverence which included a deference to the mother. It wasn't an unconditional reverence though. Motherhood is invested with its own special realms of vouchsafe and honor. This sensibility would certainly be self contained within the larger corpus of law philosophy you have cited as exclusionary of consideration. All of that said this specific doesn't get to the nub of proper constitutional disposition, though it may point toward a more honest appraisal of concentric social etymology.

- jacko

January 17, 2011 at 7:52pm

Edit:"This sensibility would certainly be self contained within the larger corpus of law philosophy you have cited as BEING exclusionary of consideration for the unborn.

- jacko

January 17, 2011 at 7:57pm

Well, jacko, law and philosophy just aren't the same thing, although there is a philosophy of law that goes by the name "jurisprudence." Neither are law and religion of the same realm. Society can revere the fetus all it wants. It can revere the Declaration of Independence too. But when you get into a court of law and the matter at hand is the rights of persons, then the question has to be answered whether, as a matter of law, a fetus or an embryo is a person. The answer to that based on the legal history of the term "person" is, no. That is not the end of the inquiry as the state and the public have interests in protecting all sorts of things and relationships that are not persons. But when it comes to intervening in the intimate personal decisions of an actual person concerning the disposition of her own body, the social interest had to be compelling. And reverence is not a compelling interest under the law because it is but a state of mind. My state of mind, or even the collective state of mind, or opinion, or reverence, or religious or philosophical belief, is not a basis for for such intervention because, in our society, where there is freedom of conscience, ideas are the subject of contest and cannot be embodied in law without some more concrete social interest. That's the American experiment.

- roidubouloi

January 17, 2011 at 8:48pm

To put it more bluntly, we cannot oblige you to act so as to express reverence that you do not feel, nor can we compel you to act out our sense of reverence. That is a good part of what the First Amendment means.

- roidubouloi

January 17, 2011 at 8:49pm

"Well, jacko, law and philosophy just aren't the same thing, although there is a philosophy of law that goes by the name "jurisprudence." Neither are law and religion of the same realm." You, along with a good amount of company, and I are in comprehensive disagreement. Secular is an illusion. I'm not saying that this artifice is without purpose or justifiable rationale. Still, all things being equal, I will happily indict the idea of law as a self sustained and self contained sanctuary. I wish I had more time to kick it about but suffice to say you and I see things a bit differently. I want to thank you for your willingness to disagree in an agreeable way. Later. Jack

- jacko

January 17, 2011 at 10:29pm

I will be very interested to read the explanation when you have the time.

- roidubouloi

January 17, 2011 at 11:35pm

Roid- “Juridical personhood is a question of law, and there is no legal history or tradition to suggest that when the Constitution speaks of persons it could be including fetuses therein.” I do not agree with that proposition Roid. As I have noted, the Constitution also speaks of “speech” and “religion,” but those terms are not defined by either the text of the Constitution or by law. They are defined by how they are consensually understood by the given polity that is governed by the Constitution. I don’t know that there is no legal history or tradition suggesting that the Constitution contemplated that the term “person” would include fetuses, but, even if that is true, I suspect that there also is no pre-constitutional history or tradition to suggest that when the Constitution refers to “speech,” it includes non-verbal expression (e.g., artistic expression, flag-burning, etc.) and the expenditure of money. Yet it is now well-established that those activities do constitute “speech” within the meaning of the First Amendment. And let’s keep in mind that the question with regard to abortion is not whether the Constitution protects fetuses. It is whether the government has an interest in protecting the lives of fetuses that trumps any constitutional right of reproductive autonomy. (By the way, do you think there is a pre-constitutional legal history or tradition to suggest that the due process clause of the 14th Amendment protects reproductive autonomy?) The kind of “compelling interest” that would trump or circumscribe a constitutional right is not necessarily rooted in the Constitution. So in determining whether the government has a compelling interest in restricting abortion, it is perfectly permissible for the Court to look outside the Constitution to assess the nature of the government’s interest in restricting abortion. “That does not mean, however, that the words used can be defined with reference to anybody of thought that one likes, such as religious thought, be it atheist, theist, or denominational. The body of thought that is the source of meaning for the words used in the Constitution is the entire body of English and American common and statute law that preceded it.” Straw man. I do not argue that the words of the Constitution may be defined with reference to any body of thought that one likes. I argue that they should be defined as they are commonly understood. Where there is a lack of consensus about what the words mean, then we have a fairly intractable interpretive problem, as we have with the abortion issue. Moreover, to speak of “atheist” religious thought is sophistry. You draw a false dichotomy in asserting that there is only a “legal” definition of personhood and a “religious” definition of personhood. Certainly a conception of personhood can be independent of either law or religion. As an agnostic, I am entitled to have a conception of personhood that has nothing to do with either law or religion. “It is not possible to conclude on the basis of that corpus of law that a fetus is a person within the meaning of the Constitution and there is no serious legal argument that it is.” That is a sweeping statement, and I suspect there are scholars who would disagree with Garield and Hennessey (assuming they conclude as you say they do), or who at least would argue that the fetus historically had some moral status, even if not that of a “person.” But, in any event, the question is not what meaning a word has “within the meaning of the Constitution.” The question is what meaning a word has among the polity to which the Constitution speaks. “One would indeed look ‘outside the Constitution’ for guidance as to construction, just as a good jurist will always look outside the language of a particular statute or case to give context and meaning to the words used there. This is not at all the same thing as looking to some other body of thought, e.g. religious thought, for guidance as to construction.” Again, you make the mistake of concluding that the only extra-textual source for giving meaning to “person” is religious thought. You seem to think that the only basis for concluding that a fetus is a person, or at least a living human entity with a moral claim to life, is superstition. I think that is false on its face. Dhurtado

- NR143296

January 18, 2011 at 12:44am

Roi and dhurtado, thanks for clarifying what you mean by "common law." I think that the analogy still has a vulnerability, though, and it arises when you consider cases of first impression. Suppose that you're a judge deciding a contract case, and the issue in the case is, to take just one classic example, whether an acceptance to an offer is effective when mailed or received. Because contract law (with some exceptions of course) is not set down in an authoritative text, the judge searches past cases for the rule of decision. If he comes up empty, yes, he makes up the rule -- to be applied in every future analogous case -- in light of his considered policy judgment. Often the question of whether a past decision governs the present case will be somewhat ambiguous, and lawyers will argue in their lawyerly fashion -- using analogies and hypotheticals and so on -- that the instant case is analogous to a prior case on the one hand or distinguishable on the other. (For example, is an acceptance effective when e-mailed?) Assuming, however, that the situation is one of first impression and not properly seen as governed by a prior case, the judge is free to make up a new rule in light of policy considerations. Naked policy arguments pervade common law cases, as well they should. Everyone understands that that's okay. Yes, lawyers will often appeal in common law cases of first impression to high-level legal principles that, they believe, should inform the outcome (though these are often weak arguments due to their airy nature), and will, even in the context of the policy argument, reach into their lawyerly bag of tricks -- analogies, hypotheticals, etc. Still, in the end, the judge makes it up, yes, without regard to any text, because there isn't any. There's no intelligent alternative. If the legislature doesn't like the judge's rule, it's free to change it, and the legislature quite commonly passes laws "in derogation of the common law," as lawyers put it (which judges, perhaps a bit peevishly, insist on interpreting "narrowly.") The process of interpreting an authoritative text in a case of first impression is fundamentally different from this common law process in that the judge is seen as obligated in such a case to be plausibly guided by the text rather than by naked policy considerations. The distinguishing feature of the common law, one might argue, isn't the process whereby lawyers argue from precedent as I described -- and thereby effect incremental changes in the law. That process surely characterizes cases that involve texts, but the distinguishing feature of the common law is that there isn't any such text to interpret. So, to characterize constitutional adjudication as "common law"-like I think either grants too much authority to judges insofar as it says that constitutional law is fundamentally "judge-made law" in the common law sense, or else doesn't really say much, because it doesn't give us a clue as to how to go about deciding cases of first impression. It doesn't tell us how to interpret texts in the first instance, because the common law doesn't involve interpreting texts. It doesn't tell us how closely or loosely to be guided by the text -- or, if we don't like those crude characterizations, it doesn't tell us how to go about the task, how to know which argument should be seen as better. This opens the door, then, to a sense of arbitrariness, and the plausible concern that judges are just doing whatever they like without adequate or meaningful constraint. In the context of the common law case of first impression, we're not bothered by judges doing whatever they like (so long as they're serving the public interest rather than a personal one), because (1) they're formally authorized to do that, and (2) they can be overruled by the legislature. Neither condition holds true in constitutional cases. The second holds true in statutory cases, and the founders did have experience, of course, with statutes, but the concept of a written constitution within a common law system was an innovation. Judicial review was likewise new. The power of the judiciary to overturn legislative enactments was and remains foreign to the English system from which our legal system is derived. English law operates under the principle of "parliamentary supremacy" -- what it says goes. Although natural law certainly has a pedigree in both England and America, so does positivism, and the great English legal positivist H.L.A. Hart wrote that the American judiciary's ability to, as he saw it, aggressively intervene in the legislative process seemed to the English lawyer very strange indeed. So, just as the phrase "living constitution" has a commonsense vulnerability, I think the "common law" label has a commonsense vulnerability too -- one that any originalist worth his salt will pounce on. It's true that the document is often indeterminate, but one is open to the criticism of results-oriented jurisprudence unless one applies a consistent method to dealing with such indeterminacy. For example, a judge will seem as though he's doing whatever he wants if, in one case, he gives the history extensive, elaborate consideration, and, in the next, ignores it. Standing on their own, each case might seem principled in that each case uses an admissible method, but over time, a judge might be seen as unprincipled in that he is applying different methods from case to case and is therefore using the method that "works" -- that gets him to where he wants -- rather than the method he would choose behind a Rawls-style veil of ignorance. Indeed, this is the precise criticism that roi levels so forcefully against the originalists -- that they're "a fraud," that they apply methods inconsistently to arrive at the outcomes that they prefer. The great questions for the constitutional judge are, it seems to me, "How do I do justice? How do I prevent the heavens from falling? And how do I not appear a fraud?" These three questions encapsulate the dominant intellectual legal attitudes -- those of the perfectionist, the pragmatist, and the originalist -- and some mix of these has informed constitutional law from the start. I think it remains for a brilliant jurist to combine them into a comprehensive, coherent, attractive, and persuasive theory. The perfectionist says that he has a good theory -- and Dworkin's articulation of it is very strong though beyond the reach of laypeople and most lawyers -- but it remains vulnerable to the second and especially the third questions. The originalist says that he has a good theory, but it's vulnerable to the first and second questions (and, if inconsistent, the third besides). The pragmatist says, Fuck theory! The reason I said I'm of many minds on this stuff is that none of these answers strikes me as going the whole intellectual distance. In practice, I tend to exhibit the attitude of a "soft originalist" with perfectionist and pragmatic backstops. For what it's worth, I think Roe -- very widely condemned among scholars -- was a perfectly good decision given prior precedent, and I think, also, that it does justice. I admire it, notwithstanding its whipping boy status. I have greater difficulty with the concept of substantive due process on which it relies, which long predated Roe, and I share the concern of many that our unenumerated rights jurisprudence rests on a shaky intellectual foundation, while at the same time recognizing that it's a firm part of our jurisprudence on which both political liberals and conservatives have relied and continue to rely. Indeed, the doctrine had its origins in questions of economic liberty and was used initially to support conservative political ends. Roi, let me take a moment to defend my alma mater from the charge of intellectual rigidity or uniformity. Nothing could be further from the truth. I took classes from three of the most brilliant federal judges working today, 7th Circuit Court of Appeals judges Diane Wood, Richard Posner, and Frank Easterbrook, as well as from the president of the United States, all of whom were wonderful teachers. Only one of those people, Easterbrook, is truly a legal conservative, and he's a very sharp and challenging guy. I also took classes from great liberal legal scholars and teachers such as Geoffrey Stone, Cass Sunstein, David Struass, and Al Alschuler. I took sex equality from the great feminist legal scholar Catharine MacKinnon, who was influential in my thinking on many legal and moral issues. I had the pleasure of drinking in the whole spectrum of legal theory in a unique required first year course in jurisprudence called "Elements of the Law" (taught by Sunstein) as well as several other seminars. The students, as with students everywhere, tend to be mostly liberal, though it's a safe harbor for legal conservatives and a place where conservative legal thought is taken seriously. This *adds to* rather than detracts from the intellectual vibrancy of the place, which is characterized by its intimacy, intellectual rigor, and spirit of honest, if sometimes ornery, debate. Just because one can get the best possible articulation of libertarian legal philosophy there (from Richard Epstein), the best possible articulation of realism and pragmatism (from the Posners -- I took two classes, including contracts, from the author of this article), or get the best possible articulation of textualism (from Easterbrook, its most compelling advocate), or get a taste of law and economics (from the horse's mouth), doesn't mean that there's any sort of conservative gospel. You get every other view too from great minds across the ideological, philosophical, and political spectrum. You're not taught to mimic; you're taught to think. It's the sort of place where one can go to a seminar at a judge's house and hear people like Epstein and Posner and Alschuler go at each other, and have a drink afterward and talk about something other than law. It's a place where one is encouraged to go toe-to-toe with the greatest legal minds you'll find and see how well you hold your own. It's a place where you're challenged to abandon comfortable orthodoxies, and hone your thinking, among non-pretentious but worthy intellects who want to talk to you. For this political liberal with, when drunk, downright socialist tendencies, it was the most intellectually stimulating and influential time of my life, certainly. I can't speak to the University of Michigan -- or Harvard, Yale, Stanford, Columbia, NYU, Georgetown, or Boalt Hall for that matter -- all of which, among others, are very fine schools I'm sure. I didn't go to those places. But I would recommend Chicago to any aspiring lawyer, regardless of political disposition, with an open mind and an openness to cold winters.

- JakeH

January 18, 2011 at 2:14am

"Thus, the more aptly labeled 'right of privacy' the emerges from the First and Fifth Amendments is held to restrict the states as well." So, "rights" simply "emerge" from other provisions? Perhaps this explains why the U.Michigan law school isn't so well know as Chicago's.

- karlwk

January 18, 2011 at 10:10am

"Thus, the more aptly labeled 'right of privacy' the emerges from the First and Fifth Amendments" Let me put it another way: if B, C, and D are all examples of A, the existence of B and C does not imply the existence of D. The common law fills in the gaps that always exist in written law. That's fine. How first amendment protections of the press at the federal level came to be applied to speech in the states is logical enough. I do understand the desire for abortions, Social Security, ObamaCare, etc, but I can't in my mind make it fit with what's agreed to in the written constitution. Rather than having judges divine what the "will of the people" is, I think it better to wait for the public's desires to be so great that the needed amendments come. There's plenty of support for extensions to national powers; so be it, but let them come in an intellectually honest manner.

- karlwk

January 18, 2011 at 11:30am

JakeH: That was fun. Even a prol like me can enjoy the depth level of your survey. You are elegant and concise. Not a small talent. Chicago didn't make you who you are but it would appear that it gave you a useful road by which to travel. Again, thanks.

- jacko

January 18, 2011 at 6:23pm

Jake- I come back to the discussion late, and have not yet read any comments coming after yours at 2:14 am of this date. In any event, I have a few responses to your post. The process you describe in the contract case is exactly what the common-law process is. The common law evolves through the extension of precedential cases to new fact situations or legal questions. If precedent unambiguously dictated the results of all future cases involving the same subject matter, the law would not evolve. While the process of extending or extrapolating from precedent to resolve new questions might fairly be called “making law,” it does not normally involve the judge simply “making up a rule” out of whole cloth, or responding to “naked policy arguments.” As you yourself describe the process, the judge is constrained to extend precedent to the new question by analogy, or to extrapolate a principle from prior cases that can then be applied to the new question. In other words, the judge is constrained by precedent, even though precedent does not unambiguously dictate the result. And that pretty much describes what the process of constitutional interpretation has been, whether or not we think of it as a “common law” process. Really, the interpretative process could not have been otherwise with regard to the broad, non-specific provisions in the Bill of Rights. In saying that, I do not argue, and I do not think Roi argues, that this common-law-like interpretive process is foolproof, or that it always leads to the right answer, or that it does not involve judge-made law in the same sense that the common law incorporates judge-made law. Indeed, particularly with regard to constitutional questions, the process surely involves the importation of the judge’s own predilections regarding what is right or what is good public policy. I agree that it is not an “invulnerable” methodology. But I think it describes what judges do, indeed must do, whether or not they choose to describe it a “common law” methodology. A judges’ claim that he or she employs an “originalist” methodology is intellectually dishonest because no judge could genuinely believe that “originalism” unambiguously dictates the correct result. But certain can judges use that fictitious concept to justify a narrow interpretation of a constitutional provision, where a narrow interpretation will advance their own ideological or political agenda. The fallacy of the proposition that “originalism” provides for a clear rule of decision or prevents judges from importing their own ideological predispositions was starkly demonstrated in the Heller case, in which both “sides” purported to employ an originalist methodology in coming to a 5-4 decision. “The process of interpreting an authoritative text in a case of first impression is fundamentally different from this common law process in that the judge is seen as obligated in such a case to be plausibly guided by the text rather than by naked policy considerations. The distinguishing feature of the common law, one might argue, isn't the process whereby lawyers argue from precedent as I described -- and thereby effect incremental changes in the law. That process surely characterizes cases that involve texts, but the distinguishing feature of the common law is that there isn't any such text to interpret.” As noted, I simply do not agree that the common law process is based on “naked policy considerations.” It is based on judicial precedent (and sometimes statutory and constitutional texts) even with regard to “cases of first impression.” In other words, precedent constrains the decisional process, arguably just as much as constitutional text, and often as much as statutory text, constrains the process. “So, just as the phrase ‘living constitution’ has a commonsense vulnerability, I think the ‘common law’ label has a commonsense vulnerability too -- one that any originalist worth his salt will pounce on.” That statement is based on what I believe is the false assumption that the common law process allows judges to fabricate rules of decision based on naked policy considerations and without regard to precedent. It simply does not. There may be cases in which judges do that, but it is not the guiding principle of common law adjudication. While a legal text may impose greater restraint than judicial precedent does, the process for interpreting legal texts and judicial precedent is analytically the same. The phrase “living constitution” implies, at least in the minds of some, that a judge may simply cast the constitutional text aside and start on a clean slate. I doubt that any person who advocates the concept of a “living constitution” thinks that. What they are really saying is that the Constitution is amenable to a relatively broad construction of the rights that the Constitution protects from government encroachment. In other words, my view is that the debate is not really between an originalist or textualist methodology, on the one hand, and a “living constitution” that allows judges to do whatever they want, on the other hand. It is a debate about how far we can go in extrapolating from constitutional first principles. Dhurtado

- NR143296

January 18, 2011 at 10:23pm