When should original meanings matter?

Michigan Law Review

Volumn 107, Issue 2, 2008, Pages 165-222

  Primus, Richard A ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 56349122114     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (325)

1. See, e.g., RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 4-5, 88 (2004);
2. KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999);
3. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 854 (1989) (stating that originalism is the only theory of constitutional interpretation that is compatible with the legitimacy of judicial review).
4. See, e.g., Robert W. Gordon, Foreword: The Arrival of Critical Historicism, 49 STAN. L. REV. 1023, 1027 (1997).
5. See, e.g., Christopher L. Eisgruber, The Living Hand of the Past: History and Constitutional Justice, 65 FORDHAM L. REV. 1611 (1997).
6. See, e.g., Michael J. Klarman, Antifidelity, 70 S. CAL. L. REV. 381 (1997).
7. See, e.g., Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1766 (1997) ("[V]irtually all practitioners of and commentators on constitutional law accept that original meaning has some relevance to constitutional interpretation.");
8. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189 (1987) (identifying original meanings as one of several sources that judges should strive to reconcile);
9. Larry Kramer, Fidelity to History - And Through It, 65 FORDHAM L. REV. 1627, 1627 (1997) ("Most of those who engage seriously with problems of constitutional interpretation ... treat the Founding as special and privileged in some sense without making it fully determinative or conclusive.");
10. David A. Strauss, Common Law, Common Ground, and Jefferson's Principle, 112 YALE L.J. 1717, 1718 (2003) ("[O]riginal understandings [must] play some role in constitutional interpretation-as essentially everyone agrees ...."). Even some theorists who are usually numbered among the harshest critics of originalism actually argue only that the role of original meanings must be limited, not that constitutional law should do without original meanings completely.
11. See, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 205 (1980) ("[M]oderate originalism is coherent and workable.");
12. id. at 237 ("The nonoriginalist treats the text and original history as presumptivelybinding and limiting, but as neither a necessary nor sufficient condition for constitutional decisionmaking.").
13. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutmann ed., 1997);
14. Brest, supra note 5, at 204 (identifying these as the two major arguments for originalism);
15. Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL'Y 599 (2004) (describing the prominence of these two arguments in recent decades). I do not mean to imply that these two arguments for originalist reasoning are the only possible arguments. Several theorists have offered others.
16. See, e.g., BARNETT, supra note 1, at 53-86 (arguing that originalist interpretation is valuable because the Constitution as originally understood happens to vindicate a desirable set of individual rights);
17. John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 NW. U. L. REV. 383 (2007) (arguing that the Constitution is well designed to produce good laws if implemented in line with its original understandings);
18. see also infra Section I.C (describing noninstrumental arguments for originalism). If other reasons justify attention to original meanings in other categories of cases, then decisionmakers should consult original meanings in those cases as well. But the analysis should still be about the applicability of the justification to particular kinds of cases rather than for constitutional law as a whole.
19. See, e.g., Fallon, supra note 5.
20. See, e.g., STEPHEN BREYER, ACTIVE LIBERTY 7-8 (2005).
21. See JEROME FRANK, LAW AND THE MODERN MIND 7 (1930) ("Much of the uncertainty of law is not an unfortunate accident: it is of immense social value" (emphasis in original)).
22. See, e.g., 1 BRUCE ACKERMAN, WE THE PEOPLE (1991);
23. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY (2005);
24. SCALIA, supra note 6;
25. WHITTINGTON, supra note 1;
26. Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 724 (1988).
27. See, e.g., Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1072-73 (1988). The major reason why the present argument applies to constitutional but not statutory decisionmaking is that statutes are easier to amend or repeal.
28. See infra Section II.B.2. This is also one reason why the present argument leaves much more room for originalist reasoning in state constitutional law than in federal constitutional law: most state constitutions are more easily revised than the United States Constitution is.
29. See infra Section II.D.
30. See, e.g., Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH. L. REV. 1127, 1127 (1998) ("[T]he dead hand argument, if accepted, is fatal to any form of constitutionalism..").
31. See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787 (2005) (arguing that the Constitution has multiple bases of legitimacy). Note that some countries, like Japan, have legitimate constitutions that were not democratically adopted at all.
32. See infra Section II.B.4.
33. There is a wrinkle here for theorists who believe the Constitution to have been informally amended during the twentieth century. See infra notes 111, 158.
34. The present argument applies to federal constitutional law. Where state constitutional law is concerned, matters are substantially different. Many state constitutional issues arise under provisions that have been recently enacted. Theorists of originalism tend to be more concerned with the United States Constitution than with, say, the Georgia Constitution of 1983 or the 2004 amendments to the Constitution of Ohio. But because many state constitutional enactments are recent, the democratic-authority rationale for attention to original meanings routinely makes sense as applied to the constitutional law of states. I thank Marc Spindelman for emphasizing this point.
35. See Whittington, supra note 6 (explaining that this form of the argument has waned in recent years).
36. See, e.g., Scalia, supra note 1; Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1166-67 (1993) (explaining that the chief proffered virtue of adhering to original meanings is the limitation of discretionary judicial decisionmaking).
37. See infra Section III.A.
38. E.g., WHITTINGTON, supra note 1, at 39.
39. See, e.g., id. at 4;
40. Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427 (2007);
41. Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271 (2005) (arguing that decisionmaking based on precedent conduces to judicial restraint and promotes the rule of law much more than decisionmaking based on original meaning could).
42. Whittington, supra note 6, at 609.
43. For an example of this position, see Steven. G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 551-52 (1994).
44. See, e.g., Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (2007);
45. Randy E. Bamett, Trumping Precedent With Original Meaning: Not As Radical As It Sounds, 22 CONST. COMMENT. 257, 258-59 (2005);
46. Calabresi & Prakash, supra note 21, at 551-52 (exemplifying the position);
47. see also infra Section III.B.
48. See, e.g., JOSEPH RAZ, THE AUTHORITY OF LAW 212-18 (1979);
49. Richard H. Fallon, Jr., "The Rule of Law" As a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 7-9 (1997).
50. See infra Section II.C.2.
51. See Fallon, supra note 5, at 1189-90.
52. See, e.g., Morton J. Horwitz, Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 34, 45 (1993).
53. See generally JOHN DEWEY, ESSAYS IN EXPERIMENTAL LOGIC 189-90 (D. Micah Hester & Robert B. Talisse eds., S. Ill. Univ. Press 2007) (1916) (describing this kind of adaptation of the tools at hand as the normal method of practical human reasoning).
54. One example taken from material to be discussed in Part II is the development of originalist interpretation based on original understandings or original public meanings, rather than original intentions, when some originalists realized that their overall democratic-authority theory required reference to the meanings understood by (or at least available to) the Constitution's ratifiers rather than its drafters. See Whittington, supra note 6.
55. See WILLIAM E. CONNOLLY, THE TERMS OF POLITICAL DISCOURSE 10-44 (3d ed. 1993).
56. See generally W.B. Gallie, Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOC'Y 167 (1956) (describing the idea of the "essentially contested concept").
57. Above, I included liberal individualism, justice, and social welfare. One might also argue for federalism, fidelity, or public identification with the regime. Some values are clearly out: nobody thinks that it would be appropriate to construe constitutional law so as to promote the public embrace of Buddhism, or filial piety, or rule by members of the Democratic Party. But there is room, for considerable disagreement within the world of plausible candidates.
58. Thus, the Preamble to the Constitution states several aspirations that could be basic constitutional values, but we cannot read the text of the Preamble as setting forth the relevant list unless we have already decided on a theory of interpretation under which the Preamble should have that authority.
59. See, e.g., Ronald Dworkin, The Forum of Principle, 56 N.YU. L. REV. 469 (1981).
60. We could call the two theorists "Calabresi" and "Merrill." Compare Steven G. Calabresi, Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania v. Casey, 22 CONST. COMMENT. 311 (2005) (arguing that judicial decisionmaking based on precedent is highly prone to manipulation)
61. with Merrill, supra note 20 (arguing that decisionmaking based on precedent conduces to judicial restraint and promotes the rule of law).
62. Dewey had this dynamic in mind when he observed that means and ends have a "thoroughly reciprocal character" in matters of practical judgment. DEWEY, supra note 27, at 189. "[0]nly by a judgment of means," he wrote, "is the end determinately made out."
63. Ibid
64. See infra Section LC.1.
65. I think it does. See infra Section III.A.
66. Cf. Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX. L. REV. 1, 23 (1994) ("[O]ur legal system, need not embrace a monolithic theory of law .... Indeed, the activity of legal reasoning ought to depend on. the particular purposes of one's activity.").
67. See, e.g., Strauss, supra note 5, at 1732.
68. One might argue that rigorous insistence on textualism in all cases would eventually serve the rule of law in the aggregate, even if it did considerable damage to rule-of-law values like stability and reliance in the short term. For that argument to succeed, however, it must be the case that some practically feasible form of textualism would, if applied in all cases, eventually deliver more stable, predictable, and impersonal adjudication than either the present system, or a system, in which the rule-of-law valence of particular interpretive methods were decided from, case to case. I am skeptical that such a form of textualism exists, though I am quite confident that textual interpretation applied in appropriate cases does help support the rule of law.
69. See, e.g., BARNETT, supra note 1, at 100-03;
70. Barnett, supra note 22, at 258.
71. See, e.g., Whittington, supra note 6, at 612-13.
72. See, e.g., RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY 3-22 (1989);
73. RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE 170-73, 270-73 (2d prtg. 1980).
74. See LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 226-27 (G.E.M. Anscombe trans., 2d ed. 1958).
75. See PHILIP BOBBITT, CONSTITUTIONAL FATE (1982).
76. See CASS R. SUNSTEIN, ONE CASE AT A TIME (1999).
77. See BARNETT, supra note 1, at 111 (stating that a rejection of originalism is tantamount to a rejection of the Constitution);
78. Calabresi & Prakash, supra note 21, at 551-52.
79. This is a point wisely conceded by some of originalism's most prominent defenders. See, e.g., Scalia, supra note 1, at 852.
80. See Richard H. Fallon, Jr., Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 106 (1997);
81. Merrill, supra note 20, at 272.
82. The prevailing rules for equal protection based on race and sex are standard examples. See RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 15-17 (200.1);
83. Monaghan, supra note 10, at 723-24, 727-39.
84. The government's ability to distribute paper money is another. Kenneth W. Dam, The Legal Tender Cases, 1981 SUP. CT. REV. 367, 389.
85. See Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408 (2007).
86. See, e.g., New York v. United States, 505 U.S. 144, 187 (1992) ("[T]he Constitution protects us from our own best intentions ....");
87. see also Kramer, supra note 5, at 1631 ("[T]he enduring appeal of originalism lies ... in this notion of the Constitution as positive law designed to restrain government.").
88. See generally JON ELSTER, ULYSSES AND THE SIRENS (1984).
89. See, e.g., Marbury v. Madison, 5 U.S. 137, 176-77 (1803).
90. See, e.g., McCulloch v. Maryland, 17 U.S. 316 (18.19) (describing the flexibility and adaptability of government over time, in unforeseen and changing circumstances, as the essence of constitutionalism).
91. See, e.g., JEREMY WALDRON, LAW AND DISAGREEMENT (1999) (criticizing the precommitment model);
92. Eisgruber, supra note 3, at 1613 ("[T]he central and most damaging fallacy of modern constitutional theory ... holds that the purpose of the Constitution is to subordinate present-day politics to the will of past super-majorities.");
93. Kramer, supra note 5, at 1634 (disputing the view that a constitutional system is necessarily about a framework of rules fixed at a given, time and foregrounding instead a model of evolving restraints over time).
94. See, e.g., Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
95. See Larry D. Kramer, When Lawyers Do History, 72 GEO. WASH. L. REV. 387, 387 (2003).
96. See Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA, 94 CAL. L. REV. 1323 (2006).
97. See Balkin, supra note 20.
98. See K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 4 (1934) (noting that the written Constitution's various clauses provide lawyers and judges with "a filing cabinet for the classification of constitutional questions," even if the document does little to settle those questions).
99. See Strauss, supra note 5, at 1733-35.
100. See Samuel Issacharoff, Constitutionalizing Democracy in Fractured Societies, 82 TEX. L. REV. 1861 (2004).
101. There is also another possibility, one which permits us to recognize that dominant American constitutional practice does not conform to the originalism-only vision while simultaneously permitting a group of theorists to maintain, cogently, that governance under a written constitution requires the originalist mode of decisionmaking. It is to recognize that the American regime is not properly characterized as governance under a written constitution, or at least not under a written constitution alone. Instead, American government is conducted on the basis of a complex web of documents, institutions, anangements, and norms-that is, a "constitution" in the generic sense-one component of which is a written document somewhat misleadingly titled "the Constitution," as if it were the entire constitution. This view is probably the best one available. But it is also controversial, and I do not claim to establish it here. For present purposes, we need not choose between denying that the American constitutional regime is fully grounded in a written constitution and accepting a vision of governance under a written constitution flexible enough to include the way that American constitutional practice actually functions. Either way, it is clear that a claim, about the inherent entailments of written constitutions cannot establish that prevailing practices are fundamentally misguided, nor can it install itself as the best understanding of constitutionalism in the absence of a normative argument.
102. Part of the rhetorical power of arguing that the Constitution just is its original meaning is its apparent disavowal of any normative stance. This approach is not what I prefer, the proponent says, but simply a necessary entailment of having a written constitution.
103. E.g., Stanley Fish, Intention Is All There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation in Law, 29 CARDOZO L. REV. 1109, 1127 (2008) ("Interpretation is the act of trying to figure out what the author, not the dictionary, meant by his or her (or their) words.");
104. id. at 1122 ("An interpreter cannot disregard [the author's] intention and still be said to be interpreting .... ").
105. See, e.g., WHITTINGTON, supra note 1, at 109 ("The appropriateness of interpretive tools must be measured by their ability to advance the goal of understanding the intentions of the author.").
106. Id. at 5-7;
107. Whittington, supra note 6, at 6.12.
108. In Whittington's view, "construction" is a valid form of decisionmaking when "interpretation" is not possible, but "interpretation" should prevail when interpretations and constructions conflict. Or, to say the same thing, nonoriginalist decisionmaking can be valid on questions that original meanings do not resolve, but questions that can be decided by reference to original meanings must be decided that way. See WHITTINGTON, supra note 1, at 11-13, 79.
109. Pennsylvania State University became the eleventh member in 1990. Big Ten Conference, Penn State University, http://bigten.cstv.com/schools/psu/big.10- schools-psu-body.html (last visited Aug. 4, 2008).
110. Yet the name of the conference has not changed. Big Ten Conference, About the Conference, http://bigten.cstv.com/school-bio/big10-school-bio.html (last visited Aug. 4, 2008).
111. See Timothy A.O. Edicott, Putting Interpretation in its Place, 13 LAW & PHIL. 451, 457 (1994) ("An account of ... interpretation should admit interpretations of dreams, novels, census data, seismograph records, constitutions and the entrails of a chicken, without dismissing any as non-standard uses of the word.");
112. Scott Hershovitz, Judging Interpretations 11 (2001) (unpublished D. Phil, dissertation, University of Oxford) (on file with the Michigan Law Review) ("[M]any objects of interpretation (eg paintings, compositions, data sets) are not the types of things that bear linguistic meaning.").
113. Whittington's use of "constitutional construction" to describe nonoriginalist decisionmaking is in some ways similar. Given the actual dynamics of debate, however, there is a danger in a classificatory scheme like Whittington's, in which "interpretation" refers to one kind of constitutional decisionmaking and other terms are used for other kinds. The danger arises because "interpretation" is an appraisive term in constitutional theory. To say "I am doing constitutional interpretation, and you are not" is not generally understood as a neutral characterization of two different approaches to legitimate decisionmaking. See generally Quentin Skinner, Language and Political Change, in POLITICAL INNOVATION AND CONCEPTUAL CHANGE 6 (Terence Ball et al. eds., 1989) (arguing that disputes over appraisve terms in political debates are normative, rather than merely semantic). At least implicitly, it communicates the message that I am doing something more valid than you are. Not coincidentally, Whittington believes that "interpretation" as he defines it is superior to "construction" because he believes original meanings to be the supreme source of constitutional authority.
114. See WHITTINGTON, supra note 1, at 11-13, 79. To his credit, Whittington supplies substantive arguments for his originalism, rather than simply resting on the claim that only originalism deserves to be called "interpretation." But if we are going to reserve the term, "interpretation" for a subset of constitutional decisionmaking techniques, we will have to remain vigilant to ensure that the terminological choice does not prejudice substantive decisions about what kind of decisionmaking is appropriate.
115. BIBBITT, supra note 44.
116. Id. at 6.
117. Id.
118. Id. at 5.
119. Here again, Dewey has a helpful observation, namely that a person's choice to do something is generally not made by comparing each possible thing against abstract criteria. Instead, one looks at the various options at hand, compares them, and acts. DEWEY, supra note 27, at 190.
120. Bobbitt himself counsels significant revaluations in what constitutional lawyers recognize as good and bad forms of argument, even, as he describes the powerful role that the traditional forms of argument play in legitimating the system. Indeed, Constitutional Fate can be read in part as a meditation on a constitutional culture in which the traditionally favored and therefore legitimating styles of argument are, from the author's point of view, not the best ways to decide many hard questions. See BOBBITT, supra note 44, at 24 (suggesting that much originalist argument is more effective as rhetoric, either to make a moral point or to legitimate the practice of judicial review, than as a criterion for decisionmaking);
121. id. at 52, 55 (identifying shortcomings of doctrinal argument as a method for resolving constitutional questions);
122. id. at 75, 85 (suggesting that structural argument, a relatively disfavored form, is often a substantively better form of constitutional reasoning than textual argument, a traditional and legitimating form);
123. id. at 95-106 (arguing that constitutional lawyers should embrace arguments based on what Bobbitt calls "ethos");
124. id. at 181 (distinguishing generally between the forms of argument that legitimate judicial review and the functions that justify it).
125. See, e.g., Cass R. Sunstein, Incompletely Theorized Agreements in Constitutional Law, 74 SOC. RES. 1 (2007).
126. Fallon, supra note 48, at 106-07 (differentiating between "ordinary" and "extraordinary" constitutional interpretation).
127. David A. Strauss, Originalism, Precedent, and Candor, 22 CONST. COMMENT. 299, 300 (2005) ("Maybe Christopher Columbus Langdell thought that precedents constitute a closed axiomatic system from which legal outcomes could be deduced on every occasion, but no one else thinks that.").
128. This is not an argument against judicial minimalism (or for it). Cf. SUNSTEIN, supra note 45 (explaining and defending the idea of judicial minimalism). Nothing here means that judges should resolve conflicts between constitutional values by awarding victory to one and putting the others to flight.
129. Cf. infra note 190 and accompanying text.
130. A judge's choice to defer in such a case to the output of a democratic electoral process is an example of a choice that must be justified in terms of underlying constitutional values, not an escape from the need to choose what those values are. See Dworkin, supra note 32.
131. Whittington offers, as "a fairly basic definition of originalism," the following: "Originalism regards the discoverable meaning of the Constitution at the time of its initial adoption as authoritative for purposes of constitutional interpretation in the present." Whittington, supra note 6, at 599.
132. Cf. BOBBITT, supra note 44, at 7, 26 (commenting on the common tendency to confuse textual and originalist argument but explaining that they are actually separate forms of reasoning);
133. Lawrence Lessig, The Limits of Lieber, 16 CARDOZO L. REV. 2249 (1995) (identifying situations in which textual interpretation is possible even though originalist interpretation is not).
134. See, e.g., Whittington, supra note 6 (canvassing forms of originalism).
135. See infra notes 111, 158 and accompanying text.
136. See, e.g., Strauss, supra note 5, at 1740.
137. Clearly, there are many problems, from a twenty-first century perspective, with, regarding the process by which the Constitution was ratified as acceptably democratic. For present purposes, however, it is not necessary to decide how damaging those problems are to the claim that the Constitution was democratically adopted, because the argument presented here will stand equally well whether the Constitution's initial adoption was adequately democratic or not.
138. The argument is made in various forms by different theorists. See, e.g., SCALIA, supra note 6;
139. WHITTINGTON, supra note 1, at 111;
140. Amar, supra note 11, at 1072-73;
141. Monaghan, supra note 10, at 724-26.
142. See, e.g., SCALIA, supra note 6, at 38;
143. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 554 (2003).
144. To be sure, it is possible that the polity enacting a constitutional provision understood it to delegate to future decisionmakers the responsibility for construing that provision. But this wrinkle does not affect the basic argument. On the contention here described, the reason for letting later decisionmakers construe constitutional meaning is that the enacting polity understood itself to be agreeing to that arrangement.
145. See, e.g., Amar, supra note 11, at 1074.
146. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).
147. See WHITTINGTON, supra note 1, at 79 ("The constitutional text authorizes judicial review but also inspires political action.");
148. Amar, supra note 11, at 1101 (arguing that the public's capacity for constitutional exertion wanes when institutions of government can change the constitutional rules and waxes when the framework is considered resistant to such attempts at change).
149. Whether this assumption is warranted on the merits is a complex and contestable question, and I do not mean to endorse any position on that question here. I mean only to show how little follows if the assumption is sound.
150. See, e.g., FALLON, supra note 49, at 15-17;
151. Dam, supra note 49, at 389 (making the point that the original meaning of the Constitution would have precluded the use of paper money);
152. Monaghan., supra note 10, at 723-24, 727-39.
153. To be sure, some people have argued that some or all of these practices are actually compatible with original meanings, but such arguments risk, making original meanings so capacious or manipulable as to be compatible with almost any side of almost any argument that any considerable constituency has pressed in American, constitutional law. See infra Section. II.C.2 (discussion, of Balkin).
154. Thus the title of his book. See BARNETT, supra note 1.
155. One aspect of our present constitutional arrangements is that constitutional decisionmakers sometimes engage in originalist reasoning. It might therefore be argued that the public's present implied consent does permit a certain amount of originalism, because originalism, is part of the system now on offer. But playing out this line of argument highlights the implausibility of implied consent's having the resolving power necessary to endorse a particular form of constitutional reasoning, even if implied consent were sufficient to legitimate a system of substantive law. The contention that the public can implicitly consent to the substantive rules by which it is governed rests on the idea that people would somehow signal their discontent, perhaps by emigrating or revolting, if they found those rules wanting. For a host of reasons well known to political theorists, that idea has weaknesses even, as applied to a government's substantive rules. See, e.g., DON HERZOG, HAPPY SLAVES: A CRITIQUE OF CONSENT THEORY 182-214 (1989). But if the public's implicit consent is supposed to legitimate not a set of substantive rules but rather a form of reasoning, we must indulge the significantly more adventurous idea that people who are content with, a government's substantive law would emigrate or revolt because they disagreed with something about the terms in which that law was officially justified. Failure to emigrate or revolt is not a terribly precise form of communication, and it is unwise to infer from it more than minimal acceptance of the status quo. At most, the public's present tolerance of a constitutional discourse in which originalism plays some role signals that respect for present public preferences is not an affirmative reason to banish originalism from constitutional law. But because it is unwise to infer more than acceptance on a theory of implied consent, it would make little sense to think that the public's non-objection to the present mix of originalism in constitutional law comprised an affirmative demand that originalist reasoning be used. Any suggestion that the public's acceptance of the present state of discourse constituted such an affirmative demand would immediately descend into the absurd position that the public demands that constitutional reasoning be conducted exactly as it is in the present, even if it is today conducted slightly differently than, it was a hundred years ago, when presumably the public, through, its acceptance, also demanded that it continue exactly as it was. The more prudent course is to avoid reading the public's inaction as an affirmative endorsement of, or a demand for, any particular form, of constitutional reasoning.
156. See Whittington, supra note 6, at 602.
157. See id. at 604-05;
158. see also infra Section III.B.
159. See Whittington, supra note 6, at 609.
160. See, e.g., United States v. Lopez, 514 U.S. 549 (1995).
161. See, e.g., Printz v. United States, 521 U.S. 898 (1997).
162. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 155-56 (1893).
163. See, e.g., Amar, supra note 11, at 1072;
164. Strauss, supra note 5, at 1717-19. The dead-hand problem is not the only limitation on this use of originalism, but for present purposes it eclipses the others. Consider, for example, the familiar point that the exclusion of many Americans from past ratification processes on the grounds of race and sex may vitiate the Constitution's claim to be democratically enacted. Reasonable people disagree about the extent to which such exclusions impede claims of democratic authority. For present purposes, however, it is not necessary to settle these issues, because the method I propose for handling the dead-hand problem avoids the need to address these other problems separately.
165. See infra Section II.D.
166. See, e.g., ELY, supra note 92, at 11.
167. See, e.g., PAUL W. KAHN, LEGITIMACY AND HISTORY 8 (1992) (arguing that democratic self-government is not possible in any state that maintains its government over time).
168. See, e.g., WHITTINGTON, supra note 1, at 201;
169. Amar, supra note 11, at 1072-73 (arguing that only the amendability of the Constitution rescues it from the dead-hand problem).
170. See, e.g., Brest, supra note 5, at 236 ("[T]he formal process of amendment is too cumbersome to bear sole responsibility for constitutional change.");
171. Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 237 (Sanford Levinson ed., 1995);
172. Henry Paul Monaghan, Doing Originalism, 104 COLUM. L. REV. 32, 35 (2004) (describing the Constitution as "practically unamendable").
173. The proposed Equal Rights Amendment, for example, was approved in Congress in 1972 by a vote of 354 to 24 in the House of Representatives, 117 CONG. REC. 35813, 35815 (1971)
174. and 84 to 8 in the Senate, 118 CONG. REC. 9544, 9598 (1972), after which it was ratified by states containing more than seventy percent of the country's total population.
175. See REX E. LEE, A LAWYER LOOKS AT THE EQUAL RIGHTS AMENDMENT 37 (1980);
176. U.S. BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 1971, at 12-14 (1971) [hereinafter 1970 CENSUS] (listing population statistics for 1970).
177. In a collection of other states comprising just under twenty percent of the population, the amendment was approved in one house but not the other. See The Impact of the Equal Rights Amendment: Hearings Before the S. Subcomm. on the Constitution of the Comm. on the Judiciary, 98th Cong. 92-93 (1984) (ratification history of the Equal Rights Amendment);
178. 1970 CENSUS, supra. (In the largest such state-Illinois-majorities in both houses voted in favor of the amendment, but local rules required supermajorities for ratification.
179. See GILBERT Y. STEINER, CONSTITUTIONAL INEQUALITY: THE POLITICAL FORTUNES OF THE EQUAL RIGHTS AMENDMENT 99 (1985).)
180. States in which neither legislative house approved the amendment accounted for only ten percent of the American population. See LEE, supra;
181. 1970 CENSUS, supra. That level of opposition, however, sufficed to defeat the amendment.
182. The answer need not be simple majority, but it is also clear that not just any supermajority rule will do. Suppose that the Constitution could be amended but only by a unanimous vote of all living Americans. No such vote could ever be secured in practice, so the formal possibility of amendment would not signal popular approval of the present system. The same would be true if the Constitution could be amended by only by a ninety-nine percent vote of all living Americans. The question, then, is whether the actual supermajoritarian hurdles to changing the United States Constitution are too high to let the people's failure to change the Constitution, stand for their implicit endorsement of the Constitution as it is. Different people may reach differing answers to this question, but any reasonable answer would concede that the Constitution is extremely difficult to revise.
183. Several theorists have argued that the Constitution can be amended by processes other than those identified in Article V. See, e.g., 1 ACKERMAN, supra note 10;
184. Brace Ackerman, The Living Constitution, 120 HARV. L. REV. 1737 (2007);
185. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994).
186. See supra Section II.A.
187. ACKERMAN, supra note 10;
188. JED RUBENFELD, FREEDOM AND TIME 173-77 (2001);
189. WHITTINGTON, supra note 1, at 1 ("[T]he judiciary ... merely interprets our own previously established commitments ....");
190. Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 28-29 (2000) ("The ... aim of [constitutional interpretation] is to understand what the American People meant and did when We ratified and amended the document.").
191. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 901 (1992) ("Our Constitution is a covenant running from the first generation of Americans to us and then to future generations.");
192. Balkin, supra note 20.
193. See Richard A. Primus, Judicial Power and Mobilizable History, 65 MD. L. REV. 171 (2006).
194. Again, we may acquiesce in the constitutional system's operation today, but our modern, assent is at most to the Constitution, as it is now implemented, not as it was understood in the distant past. See supra Section II.A.
195. See McConnell, supra note 12.
196. Letter from Thomas Jefferson, to James Madison (Sept. 6, 1789), in 15 THE PAPERS OF THOMAS JEFFERSON 392, 396 (Julian. P. Boyd ed., 1958).
197. See, e.g., Amar, supra note 11, at 1074 (explaining that his theory of informal amendment is designed to make it possible to rest constitutional law on the consent of the governed alone);
198. Jed Rubenfeld, The Paradigm-Case Method, 115 YALE L.J. 1977, 1990 (2006) (insisting that constitutional law is neither a check on democracy, a protector of democracy, nor a vehicle of democracy, but actually democracy itself).
199. See, e.g., JED RUBENFELD, REVOLUTION BY JUDICIARY 139 (2005) (contending that only a commitment to presentist democracy can intelligibly animate the dead-hand argument).
200. See, e.g., ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 193-96 (1989);
201. STEPHEN HOLMES, PASSIONS AND CONSTRAINT 134-77 (1995);
202. RUBENFELD, supra note 113, at 74-80 (following Denida's critique of Rousseau on this point).
203. See, e.g., DAVID HUME, AN INQUIRY CONCERNING THE PRINCIPLES OF MORALS 125 (Charles W. Hendel ed., Bobbs-Merril 1981) (1751);
204. DAVID HUME, A TREATISE OF HUMAN NATURE 314-15 (David Fate Norton & Mary J. Norton eds., Oxford 2000) (1740).
205. See Fallon, supra note 13, at 1792-93.
206. See David A. Strauss, Reply: Legitimacy and Obedience, 118 HARV. L. REV. 1854, 1854-55 (2005) (arguing that a government is "legitimate" if defiance of it is not justified).
207. See JAMES ROSS HURLEY, AMENDING CANADA'S CONSTITUTION 10, 12, 25 (1996).
208. See KYOKO INOUE, MACARTHUR'S JAPANESE CONSTITUTION 6-36 (1991).
209. Jed Rubenfeld, The Two World Orders, WILSON Q., Autumn 2003, at 22, 26-27.
210. Id. at 29.
211. Id. at 27.
212. See Strauss, supra note 5, at 1739 ("It is not reasonable to expect people to continue to adhere to political institutions without having, or developing, affective ties to those institutions.").
213. If the word "communion" has a religious resonance in the previous sentence, it suggests an appropriate analogy. One function of the Catholic Mass is to foster a sense of identification with heroic events that happened too long ago for anyone participating to have experienced directly. See PAUL CONNERTON, HOW SOCIETIES REMEMBER 4, 102-04 (1989).
214. See Primus, supra note 115.
215. See id. at 179-80.
216. See supra note 1.17 and accompanying text.
217. See Balkin, supra note 20;
218. Balkin, supra note 22.
219. Balkin, supra note 20, at 465.
220. Id. at 427-28, 532.
221. Balkin, supra note 20.
222. Id. at 438-39, 465.
223. Id. at 440-41.
224. Id. at 439.
225. See id. at 507-08 (acknowledging and defending the choice to be concerned with rhetoric).
226. See id. at 504-11;
227. see also Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297, 322-23 (2001).
228. See Balkin, supra note 22, at 293.
229. Id. at 293, 295, 304-05.
230. Balkin, supra note 20, at 487.
231. Balkin, supra note 22, at 295-97.
232. See, e.g., Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781 (1983).
233. Balkin, supra note 22.
234. Id. at 291-92.
235. See Balkin, supra note 20, at 514-16.
236. Balkin, supra note 22, at 308-10.
237. Balkin, supra note 20, at 516-18.
238. See Brest, supra note 5, at 229 n.94 (writing that the strength of the democratic ideal in constitutional law is such that it is hard to imagine the courts ignoring the mandate of a contemporary amendment);
239. Dorf, supra note 5, at 1816-22;
240. cf. William N. Eskridge, Jr. & Philip P. Frickey, Foreword: Law as Equilibrium, 108 HARV. L. REV. 26, 56-75 (1994) (arguing, in the context of statutory interpretation, that similar reasons make original understanding highly pertinent soon after a statute is enacted and then less pertinent as time goes on).
241. The recency approach provides a justification for the practice of constitutional originalism in the first years or even decades after 1788. See, e.g., Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the "Living Constitution" in the Course of American State-Building, 11 STUD. AM. POL. DEV. 191, 204-05 (1997).
242. When all of the Constitution was new, and the people on whose authority it was adopted were still the people it bound, interpreting the Constitution to enforce the bargain agreed to would indeed have shown respect for democratic processes of decisionmaking. To be clear, I offer this observation only as an illustration, not as any kind of support for the correctness of the approach I here recommend. From, a justificatory point of view, whether Americans of long-ago generations saw the relationship between democracy and constitutional authority in one way or another cannot bear on the democratic legitimacy of the constitution today. Moreover, I make no claim about the extent to which early Americans understood their constitutional originalism to be aimed at respecting democratic decisionmaking in the manner that the modern command theory claims. See Horwitz, supra note 26, at 57-58 (arguing that democracy was not considered a significant source of American constitutional authority until the middle of the twentieth century).
243. I do not mean to imply that the Fourteenth Amendment was in fact enacted in a democratically legitimate way. Whether it was is a tricky question of its own, and it need not be resolved for present purposes. See Richard A. Primus, The Riddle of Hiram Revels, 119 HARV. L. REV. 1680, 1687 (2006).
244. Cf. GERARD N. MAGLIOCCA, ANDREW JACKSON AND THE CONSTITUTION: THE RISE AND FALL OF GENERATIONAL REGIMES 2-3 (2007).
245. Jefferson's quip that the Constitution, should expire every nineteen years was based on his rough-and-ready calculation that that was the best measure of a generation. Letter from Thomas Jefferson to James Madison, supra note 118.
246. The case of the Twenty-Seventh Amendment - the most recently adopted as of this writing - helps to flesh out the import of constitutional recency. That Amendment was officially adopted in 1992, but it is questionable whether the decisionmaking process behind the Amendment was "recent" in the relevant sense. The text of the Amendment was adopted by Congress in 1789. Six states ratified the Amendment between 1789 and 1791, and an seventh state (Ohio) ratified in 1873. No other ratifications followed for more than a hundred years, after which a new campaign exhumed the Amendment and brought it before the remaining state legislatures. Beginning with. Wyoming in 1978 and ending with Michigan in 1992, another thirty-one states then ratified, and the Amendment was deemed adopted by the ratification of Article Vs required three-fourths of all states (i.e., those thirty-one plus the seven that had ratified more than a hundred years before, for a total of thirty-eight out of fifty). See Richard B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61 FORDHAM L. REV. 497, 498, 532, 534, 537-38 (1992). Many legislators whose votes were necessary to make the Twenty-Seventh Amendment part of the Constitution under Article V (as well as the people who voted to elect those legislators) were long dead by the time of the last ratifications. One oddity of the Twenty-Seventh Amendment, therefore, is that a portion of the ratifiers whose assent made the Amendment valid under Article V lacked democratic authority at the time of the Amendment's adoption. Accordingly, an interpreter implementing the Amendment would either have to reject Article V as the basis for the Amendment's validity or else abandon the idea that the Amendment had full democratic authority even at the moment when it came into force.
247. This clean solution becomes a bit messier if one takes the view that the Constitution has been amended informally on several occasions. See Ackerman, supra note 111. If the people have democratically issued a constitutional instruction, the arguments for originalism as a means of respecting democratic authority are essentially the same regardless of whether the instruction is issued through the Article V process or in some other way. On Ackerman's reading of constitutional history, much modern, constitutional litigation should actually be understood as construing the " enactments" of the New Deal or the Civil Rights era, even, if the constitutional clauses nominally being construed were formally adopted in previous centuries. If Ackerman is right, then originalism cannot be ruled out in such litigation just because the formal enactments at issue are more than a hundred years old; the actual authority is more recent. One could dodge this complexity by arguing that the Civil Rights and New Deal moments, having occuned forty to seventy years ago, fall on the far side of the recency line. But that judgment may be contestable. Of course, the process of construing an informal amendment might be different from the process of construing a formal amendment. On. Ackerman's theory, informal amendments can be embodied in federal statutes and Supreme Court opinions. Figuring out what was enacted in a federal statute or a Supreme Court opinion might require different techniques from those used to figure out what was enacted in a text that is submitted to state legislature for ratification. But this seems like a problem, of execution rather than a problem of authority, and it may or may not be more insoluble than the problem of identifying the original meaning of a formal amendment.
248. My argument leaves a good deal more room for originalist decisionmaking in state constitutional law, because many state constitutional provisions are of recent origin. That said, I do not expect many originalists to be comforted by my noting that the democratic-authority argument for originalist decisionmaking often makes sense in the state constitutional context. Most originalists care a great deal about the United States Constitution, and relatively little about the twentieth- and twenty-first century constitutional law of particular states. See supra note 15.
249. See, e.g., SCALIA, supra note 6;
250. WHITTINGTON, supra note 1, at 153-56, 201, 216.
251. See, e.g., WHITTINGTON, supra note 1, at 156.
252. See supra Section II.B.2.
253. See, e.g., Balkin, supra note 20, at 429;
254. Barnett, supra note 22, at 259 ("Most originalists place a high value on the rule of law, which is one reason they care so much about preserving the original meaning of a written constitution.");
255. Calabresi & Prakash, supra note 21, at 551-52.
256. See generally Fallon, supra note 23.
257. See RAZ, supra note 23, at 212-18;
258. Fallon, supra note 23, at 6-9.
259. See, e.g., RAZ, supra note 23, at 210-11.
260. HERZOG, supra note 97, at 133.
261. See, e.g., SCALIA, supra note 6, at 44-47 (arguing that the problem with nonoriginalist constitutional interpretation is that it lets interpreters go off in various different directions);
262. Lessig, supra note 17, at 1166 (explaining that the chief proffered virtue of adhering to original meanings is the limitation of discretionary judicial lawmaking);
263. Whittington, supra note 6, at 609 (characterizing theorists who have adopted this view).
264. See, e.g., Stephen Markman, An Interpretivist Judge and the Media, 32 HARV. J.L. & PUB. POL'Y (forthcoming 2009).
265. E.g., WHITTINGTON, supra note 1, at 39.
266. E.g., id. at 4;
267. Balkin, supra note 20.
268. See Calabresi & Prakash, supra note 2.1, at 55.1-52;
269. Whittington, supra note 6 (differentiating the originalism of the 1970s and 1980s, which emphasized constraining judicial interpretation, from more recent originalism, which emphasizes fidelity to the law's substantively authoritative content).
270. See, e.g., Balkin, supra note 20, at 436;
271. Lessig, supra note 17;
272. Whittington, supra note 6, at 609.
273. See supra Section LC.
274. Cf. Scott J. Shapiro, Law, Plans, and Practical Reason, 8 LEGAL THEORY 387 (2002) (arguing that the essence of the rule of law is that it enables planning).
275. See, e.g., SCALIA, supra note 6, at 44-47 (arguing that the problem with nonoriginalist constitutional interpretation is that it lets interpreters go off in various different directions);
276. Lessig, supra note 17, at 1166 (explaining that the chief proffered virtue of adhering to original meanings is the limitation of discretionary judicial lawmaking);
277. Whittington, supra note 6, at 609 (characterizing theorists who have adopted this view).
278. See FRANK, supra note 9, at 7 ("Much of the uncertainty of law is not an unfortunate accident: it is of immense social value." (emphasis in original)).
279. More precisely, having decisions informed by officials' subjective normative views is a threat to the rule of law if those normative views are controversial and not legally sanctioned.
280. See, e.g., Strauss, supra note 78, at 299-300 (characterizing this view).
281. See WHITTINGTON, supra note 1, at 39.
282. A great deal has been written on the question of how determinate original meanings can be. See, e.g., Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995) (describing the difficulty of determining the original meaning of the Fourteenth Amendment);
283. Kramer, supra note 56;
284. William E. Nelson, History and Neutrality in Constitutional Adjudication, 72 VA. L. REV. 1237 (1986);
285. Jack N. Rakove, Fidelity Through History (Or to It), 65 FORDHAM L. REV. 1587 (1997);
286. Scalia, supra note 1;
287. Strauss, supra note 78.
288. On the relative merits of originalism and attention to judicial precedent as tools for confining judicial discretion, see, for example, Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MINN. L. REV. 1173 (2006);
289. Fallon, supra note 48, at 106 (describing as "ordinary constitutional adjudication" the large majority of cases that are resolved by reference to the existing doctrinal rules laid down, by precedential cases);
290. Merrill, supra note 20;
291. David Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996).
292. See Strauss, supra note 78, at 300 ("Maybe Christopher Columbus Langdell thought that precedents constitute a closed axiomatic system, from, which legal outcomes could be deduced on every occasion, but no one else thinks that.").
293. See, e.g., United States v. Butler, 297 U.S. 1 (1936) (holding on originalist grounds that the Taxing Clause states a power independent of the other provisions of Article I, Section 8);
294. Hans v. Louisiana, 134 U.S. 1 (1890) (holding on originalist grounds that a citizen may not sue his own state in federal court absent an abrogation of sovereign immunity);
295. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding on originalist grounds that the Fifth Amendment does not apply against state governments);
296. Nelson, supra note 89, at 581-84 (describing the process by which judicial decisions shaped an authoritative original meaning of the Ex Post Facto Clause).
297. See Merrill, supra note 20, at 286.
298. Any volume of F.3d will attest to this proposition.
299. Imagine a case in which judicial precedents eliminate options A through D but do not resolve the question of whether E, F, or G is the correct answer. If original meanings preclude E but are consistent with. F and G, then attention to original meanings would further the aim of constraining the decisionmaker.
300. Once again, imagine a case in which judicial precedents eliminate options A through D and leave open options E, F, and G. If original meanings are inconsistent with E1 F, and G but permit options A and B, the decisionmaker cannot follow both precedent and original meaning. If the choice of which tool to use is itself discretionary, she now has more discretion than if her set of tools had been smaller.
301. Cf. Fallon, supra note 5 (proposing that interpreters follow a hierarchy of methods in cases where they are unable to identify a coherence among the various indicators).
302. The need for discretion-constraining tools to yield substantively accurate results is practical as well as conceptual. As a practical matter, a proposed rale of decision that departed too far from what the judges regarded as substantively acceptable would probably fail to constrain judges even if it were entirely clear, because many judges would refuse to follow such a rule. Brown v. Board of Education, 347 U.S. 483 (1954), is an archetypical example.
303. Its companion case Boiling v. Sharpe, 347 U.S. 497 (1954), is probably an even better one.
304. See Richard A. Primus, Boiling Alone, 104 COLUM. L. REV. 975, 976-77 (2004). To put the point in terms of the plural values that underlie the toolkit metaphor, a constitutional case in which a clear rule points to a substantively repulsive result is likely to be a case in which the interests in legal determinacy and constrained judicial discretion are overcome by other constitutional values. To be sure, decisionmaking principles whose sole virtue is that they can settle the question sometimes have a role to play. But they are only likely to play that role effectively in cases where there are no powerful substantive arguments for any particular resolution, or else in cases where the decisionmakers are choosing among options that are all supported by roughly equally persuasive substantive arguments.
305. See Strauss, supra note 5, at 1743.
306. Indeed, given the complexity and indeterminacy of historical sources, rendering the source materials of originalism into a useable form, for constraining interpretive discretion in modern constitutional cases often calls for simplifying distortions of history rather than for faithfully rendering the past in its full complexity and on its own terms. See Rakove, supra note 181 (describing the conflict between the project of using originalism to foster constitutional fidelity and the project of being faithful to the discipline of history).
307. See, e.g., Whittington, supra note 6, at 608 (noting that contemporary originalists are less interested in constraining judicial discretion than originalists of previous generations generally were).
308. For some contemporary originalists, the aspiration to get the law substantively right may be the highest value within the rule-of-law cluster. The idea that original meanings should prevail over stare decisis, for example, is a choice to value getting the law substantively right more highly than keeping the law stable and predictable. Compare Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. CIN. L. REV. 7 (2006)
309. (preferring original meaning to stare decisis), with SCALIA, supra note 6, at 140 (describing stare decisis as an exception, to the general rule that constitutional interpretation should be originalist).
310. See, e.g., Whittington, supra note 6, at 609;
311. Balkin, supra note 20.
312. See Whittington, supra note 6, at 609.
313. See Balkin, supra note 20, at 429-31. A provision that states a general principle may properly be applied differently in different contexts, but the argument here described requires that the principle's underlying content remain the same.
314. See supra Section II. B.2.
315. See supra Section II.B.1.
316. See supra Section II.B. 1.
317. See U.S. CONST, art. II, § 1, cl. 5 ("No person.... shall be eligible to the Office of President ... who shall not have attained to the Age of thirty five Years ....").
318. 32 U.S. (7 Pet.) 243 (1833).
319. See, e.g., BARNETT, supra note 1, at 4 (arguing that we should be originalists in part because of the happy coincidence that the Founders enacted a libertarian constitution that properly protects people's rights).
320. For a survey of a related if less honest tendency, see Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 73 FORDHAM L. REV. 545 (2006).
321. For an apt critique of Barnett's approach, see Trevor W. Morrison, Lamenting Lochner's Loss: Randy Barnett's Case for a Libertarian Constitution, 90 CORNELL L. REV. 839 (2005).
322. See Dorf, supra note 5, at 1803-05 (describing the phenomenon of "heroic originalism");
323. cf. McGinnis & Rappaport, supra note 6, at 385 (arguing that the United States Constitution is well designed to produce good laws if implemented in line with original understandings).
324. See FRANK, supra note 9, at 13-21 (interpreting lawyers' unease with legal uncertainty as a form of longing for clear instruction from an absent father).
325. See Gerard N. Magliocca, Veto! The Jacksonian Revolution in Constitutional Law, 78 NEB. L. REV. 205, 206 (1999) ("Constitutional lawyers are paid to masquerade as historians.").