Originalism is Bunk

New York University Law Review

Volumn 84, Issue 1, 2009, Pages 1-96

  Berman, Mitchell N ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 66449123378     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (414)

1. 1.Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085 (1989).
2. Id. at 1085.
3. Id.
4. Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 613 (1999).
5. For a sampling of commentators who share this assessment, see Lawrence Rosenthal, Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation, and Parking Tickets, 60 OKLA. L. REV. 1, 4 n.13 (2007).
6. See, e.g., ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 155-56 (2d ed. 2005) (characterizing "[t]he widespread attraction of 'originalism' [a]s one of the main puzzles about theories of constitutional interpretation," and declaring it "quite a mystery why originalism still has the scholarly (and judicial) support that it does").
7. See, e.g., id. at 155 (" '[OJriginalism' is not the title of one particular theory of constitutional interpretation but rather the name of a family of diverse ideas, some of which are actually at odds with each other.");
8. GREGORY BASSHAM, ORIGINAL INTENT AND THE CONSTITUTION: A PHILOSOPHICAL STUDY 36 (1992) ("[I]t is difficult to state with precision just what originalism asserts, since commentators have characterized the theory in varying and often inconsistent ways.").
9. In the latest edition of his co-authored textbook, Farber's Guide for the Perplexed, see supra note 1, appears largely unchanged.
10. See DANIEL A. FARBER SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION ch. 14 (2d ed. 2005).
11. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1139 (2003).
12. Aileen Kavanagh, Original Intention, Enacted Text, and Constitutional Interpretation,47 AM. J. JURIS. 255, 257 (2002);
13. see also David Couzens Hoy. A Hermeneutical Critique of the Originalism/Nonoriginalism istinction, 15 N. KY. L. REV. 479, 479-80 (1988) (expressing similar view).
14. Kavanagh, supra note 9, at 257.
15. E.g., id. at 255;
16. Earl Maltz. Foreword: The Appeal of Originalism, 1987 UTAH L. REV. 773, 773.
17. Barnett, supra note 4, at 635.
18. See infra Part III.A.
19. Among the best are BASSHAM, supra note 6;
20. DENNIS J. GOLDFORD, THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM (2005);
21. JOHNATHAN O'NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY (2005);
22. and KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999).
23. For a nice overview in addition to Farber, supra note 1,
24. see generally Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226 (1988).
25. Much less comprehensive, but more recent, is Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL'Y 599 (2004).
26. FRANCIS BACON, The Proficience and Advancement of Learning, Divine and Human, in 1 THE WORKS OF FRANCIS BACON 211 (Philadelphia, A. Hart 1871) (1605),
27. quoted in BASSHAM, supra note 6, at 17.
28. The "ought" in this sentence suggests that originalism is a normative thesis, and to a substantial extent it is. Still, when it comes to constitutional theories, a neat dividebetween the normative and purely descriptive is usually elusive. See, e.g., Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765 (1997);
29. Richard H. Fallon, Jr., How To Choose a Constitutional Theory, 87 CAL. L. REV. 535, 540-41 (1999);
30. see also infra Part I.C.4 (discussing denial by some originalists that they mean to express normative claims).
31. A good history appears in Kesavan & Paulsen, supra note 8, at 1134-48.
32. See also Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 CONST. COMMENT. 257, 257 n.4 (2005)
33. (endorsing account of Kesavan and Paulsen, supra note 8).
34. For similar tellings of the tale, see generally John Harrison, Forms of Originalism and the Study of History, 26 HARV. J.L. & PUB. POL'Y 83 (2003),
35. and Whittington, supra note 15.
36. Antonin Scalia, Address Before the Attorney General's Conference on Economic Liberties (June 14,1986), in OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, ORIGINAL MEANING JURISPRUDENCE: A SOURCEBOOK app. C (1987) [hereinafter DOJ SOURCEBOOK].
37. The shift from original intent originalism to original public meaning originalism is traced to Justice Scalia's address by Kesavan and Paulsen, supra note 8, at 1139, 1140 & n.90,
38. and by Gary Lawson and Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47, 48 & n.10 (2006).
39. In 1990, Bork himself endorsed this shift, explaining that his earlier references to ratifiers' understanding were merely "a shorthand formulation" for original public meaning. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 144 (1990);
40. see also id. at 218 (characterizing originalism as "seek[ing] the objective meaning that constitutional language had when it was adopted").
41. I believe that weak originalism properly claims a spot in originalist logical space because the position it contests-"exclusive non-originalism" or "anti-originalism"-is imaginable. Because that latter position is not a live competitor in contemporary debates, however, readers might fairly doubt that weak originalism falls within the range of positions that anyone has in mind when employing the originalist label. As I will explain shortly, I agree. For that reason, I will reject weak originalism as a candidate for the meaning of originalism simpliciter. But that is not enough, I think, to eject it from the space we are exploring. In any event, nothing about my argument depends upon including weak originalism as a true subset of the class of views properly deemed originalist. If you wish to exclude it at this early stage, feel free.
42. Stephen Griffin calls this same concept "exclusive originalism" and shares my assessment of its importance to contemporary debates. See Stephen M. Griffin, Rebooting Originalism, 2008 U. ILL. L. REV. 1185,1187, 1197. Griffin's article is especially valuable for its insightful and persuasive critique of originalists for embracing "history without historicism"-for failing, in short, to adequately accommodate relevant changes in historical context.
43. To be sure, exclusive originalists recognize that, for some constitutional provisions, the original meaning (intent or understanding) cannot be identified to the requisite degreeof confidence (whatever that might be) or that, even if the original object can be identified, it is too vague or ambiguous to resolve a dispute. To put the point another way, for some constitutional questions, no sufficiently determinate original meaning (intent or understanding) of the Constitution can be identified. Exclusive originalists prescribe two different courses in such cases. Some advise that courts should conclude, in the name of majoritarianism, that the Constitution permits the governmental action in question. See, e.g., BORK, supra note 20, at 166;
44. Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1044 (1992);
45. Michael Stokes Paulsen, How To Interpret the Constitution (and How Not To), 115 YALE LJ. 2037, 2057 (2006). Others would permit courts to announce more determinate constitutional meaning with the proviso that, in so doing, they would create new meaning for purposes of constitutional law but would not be engaged in interpreting constitutional meaning.
46. See, e.g., Barnett, supra note 4, at 645-46;
47. Stanley Fish, There Is No Textualist Position, 42 SAN DIEGO L. REV. 629, 640 (2005). Lexical originalists permit courts to announce constitutional meaning when the originalist object is not discoverable and do not insist that, in such cases, courts are necessarily engaged in something other than constitutional interpretation.
48. The term "moderate originalism" appears frequently in the literature. My use is, I think, consistent with Farber's, but not with others'. See Farber, supra note 1, at 1086 ("A moderate originalist might well view factors [other than original intent] as potentially important, particularly when the evidence of intent is unclear."). To Paul Brest, for example, "moderate originalism" is not the view that original meaning has some form of priority over non-original meaning short of true lexical priority. It is the view that interpreters should inquire into framers' intent conceived at a relatively high level of generality.
49. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 222-23 (1980).
50. Yet more confusingly, what Brest calls "moderate originalism," Cass Sunstein calls "soft originalism," a term I will attach to an entirely different concept. See Cass R. Sunstein, Five Theses on Originalism, 19 HARV. J.L. PUB. POL'Y 311, 313 (1996) ("[T]he soft originalist will take the Framers' understanding at a certain level of abstraction of generality.").
51. (And for a third meaning of "soft originalism" that differs from both Sunstein's and mine, see GOLDFORD, supra note 14, at 9, which uses the term to denote the ratifiers' understanding originalism, specifically in contrast to the framers' intent originalism.) In short, to avoid confusion, readers well versed in the originalism literature are especially cautioned to attend to my stipulated definitions.
52. David Hoy employs the labels weak, moderate, and strong originalism to distinguish among theories that treat original intent as, respectively, necessary to support a judgment of unconstitutionality, sufficient, and both necessary and sufficient. Hoy, supra note 9, at 483-85.
53. It follows that the particular originalist thesis under consideration would be soft lexical original intent originalism.
54. The hard/soft distinction is cousin to Aileen Kavanagh's proposed distinction between "direct" and "indirect" arguments for originalism. See Kavanagh, supra note 9, at 259 (defining "direct" arguments for originalism as "establish[ing] a positive link between Framers' intent and proper interpretation" and "indirect" arguments as "merely show[ing] that originalism is one of the possible ways of answering to a difficulty which afflicts all methods of interpretation").
55. But even if my hope proves unrealized in your case-even if you're left doubting that there is a coherent or useful distinction to be drawn in this vicinity-my core arguments remain unaffected. The hard/soft distinction is advanced to facilitate our assessment of the extant arguments for strong originalism. Yet, however we classify those arguments, the question of fundamental importance is whether they are successful.
56. For a not wholly atypical rant, see Lillian R. BeVier, The Integrity and Impersonality of Originalism, 19 HARV. J.L. PUB. POL'Y 283, 287 (1996): "The hypocrisy of many of the nonoriginalists' arguments, the deliberate masking of their real agenda, the lack of candor, the absence of respect for (or even acknowledgment of) law as a constraint-all of these features exert a corrupting influence on the very idea of law itself."
57. This distinction, generally overlooked, is noted in BASSHAM, supra note 6, at 19-21.
58. (framers' intent vs. ratifiers' understanding vs. public meaning) x (weak vs. moderate vs. lexical vs. exclusive) x (hard vs. soft) x (judicial vs. official vs. universal).
59. For example, I have lumped together as "moderate originalism" all theses that would assign a presumption to the originalist focus of any weight greater than ordinary but short of conclusive. This is to recognize fewer differences than the law often feels comfortable in distinguishing. (Equal Protection doctrine, to take one salient example, subdivides weighty state interests between the "important" and the "compelling.") We could, therefore, replace moderate originalism with the subvarieties "medium weight originalism" and "heavy weight originalism," where even the latter is weaker than either of the two variants of strong originalism. And many more subtle distinctions might helpfully emerge once self-professed originalists abandon strong originalism and focus their formidable energies and intellects on the presently undertheorized space of moderate originalism. I have also noted that hard originalism comes in what we might call "ordinary hard" and "super hard" variants. Similarly, original intent originalism could be broken into two variants: those that focus on the intent of the text's actual authors and those that focus on the collective intent of all persons at the Philadelphia Convention.
60. See infra note 202.
61. For a particularly revealing display of some of the dimensions on which originalisms can differ, and to illustrate how these differences can easily escape our attention, compare the slight differences in definition across two editions of the Farber Sherry constitutional history textbook already cited. The initial 1990 edition announces that "[o]riginalists are committed to the view that original intent is not only relevant but authoritative, that we are in some sense obligated to follow the intent of the framers." DANIEL A. FARBER SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 374 (1st ed. 1990).
62. In subtle contrast, the 2005 second edition describes originalists as "committed to the view that the historical perspective is not only relevant but at least sometimes authoritative, that contemporary judges are in some sense obligated to follow the views of the framers." FARBER SHERRY, supra note 7, at 526. On the dimension of object, the authors have shifted from a position that emphasizes original intent toward one that is agnostic among the competing candidates; on the dimension of subject, they shift from universal originalism (marked by "we") to judicial originalism; and on the dimension of strength, they have effected a modest equivocation by inserting the qualifier "at least sometimes."
63. Barnett, supra note 4, at 613.
64. Christopher L. Eisgruber, Early Interpretations & Original Sins, 95MICH. L. REV. 2005, 2013 (1997).
65. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1812 (1996).
66. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997).
67. I agree with those who urge that distinguishing original intent from original meaning is less significant than often claimed. See, e.g., Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 549 n.133 (2003).
68. Indeed, I suspect that originalists who extol original meaning as a solvent are subject to embarrassment as it becomes increasingly clear that many of the most difficult problems of contemporary constitutional jurisprudence involve the resolution of neither word-level ambiguity nor disputes over the semantics of discrete constitutional clauses or sentences. As others have argued, and as recent cases involving the war on terror reinforce, whatever value originalism will have for horizontal separation of power controversies is more likely to come from inquiries into original purposes or intentions than from original public meaning. See, e.g., Flaherty, supra note 37, at 1812-13.
69. But see, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541 (1994) (arguing that original public meaning originalism presents overwhelming case for unitary executive).
70. The same is true of vertical separation of powers disputes, as the Court has belatedly appreciated the importance of the Necessary and Proper Clause for cases it had previously conceived of as involving the Commerce Clause alone. Compare, e.g., United States v. Lopez, 514 U.S. 549, 558-59 (1995) (discussing third category of Commerce Clause power without even mentioning Necessary and Proper Clause), and Pierce County v. Guillen, 537 U.S. 129, 147 n.9 (2003) (upholding federal law that regulated intrastate activities for purpose of protecting instrumentalities of interstate commerce, while expressly disavowing reliance on Necessary and Proper Clause), with Gonzalez v. Raich, 545 U.S. 1, 22 (2005) (emphasizing that regulation of intrastate activities must depend upon Necessary and Proper Clause). It is implausible that proper resolution of cases of this sort will turn on the original public meaning of the word "proper."
71. Larry Solum thinks that I misread Scalia. According to Solum, Scalia is pointing out merely that Originalists, unlike their opponents, believe that the semantic meaning of the Constitution does not change; he is saying nothing about the Constitution's legal meaning. See Lawrence B. Solum, Semantic Originalism 11 n.31 (111. Pub. Law & Legal TheoryResearch Papers Series No. 07-24, 2008), available at ssrn.com/abstract=l 120244.
72. I believe that Solum is mistaken. See infra Part I.C.4.
73. GOLDFORD, supra note 14, at 139 (emphasis added).
74. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 3 (1977)
75. ("[T]he 'original intention' of the Framers is binding on the Court BORK, supra note 20, at 5 (arguing that judges are "bound by the only thing that can be called law, the principles of the text, whether Constitution or statute, as generally understood at the enactment");
76. see also, e.g., DOJ SOURCEBOOK, supra note 19, at 2 ("[C]ourts must construe the Constitution according to its original meaning.").
77. I have included here only a tiny sample of these scholars' characterizations of Originalism. See, e.g., RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 4 (2004) ("[B]y committing ourselves to a written constitution, we commit ourselves to adhere to the original meaning of the text and any later amendments.");
78. Calabresi & Prakash, supra note 38, at 551-52 ("[T]he text of the Constitution, as originally understood by the people who ratified it, is the fundamental law of the land. The meaning of all legal writings depends on their texts, as they were objectively understood by the people who enacted or ratified them. Originalists do not give priority to the plain dictionary meaning of the Constitution's text because they like grammar more than history. They give priority to it because they believe that it and it alone is law." (footnotes omitted));
79. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1250 (1994) ("[0]riginalist interpretivism is not simply one method of interpretation among many-it is the only method that is suited to discovering the actual meaning of the relevant text.");
80. John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 CONST. COMMENT. 371, 374 (2007) ("[Originalism] requires that judges interpret the document based only on its original meaning.");
81. Kesavan & Paulsen, supra note 8, at 1142 ("[0]riginal meaning textualism is the only method of interpreting the Constitution.");
82. Saikrishna B. Prakash, Unoriginalism's Law Without Meaning, 15 CONST. COMMENT. 529, 544 (1998) ("When we accept some text as law, we also commit to the law's original meanings. Indeed, to embrace the legitimacy of words as law without their original, ordinary meanings is to embrace nothing.");
83. see also, e.g., MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS: LAW OR POLITICS? 32 (1994) ("The constitutional text as originally understood should be deemed authoritative for purposes of constitutional adjudication.").
84. See infra Part I.C.5.
85. See, e.g., Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 295 (2007) ("Constitutional interpretation by judges requires fidelity to the Constitution as law. Fidelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.").
86. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 655-56 (4th ed. 2000) (defining fidelity as "[e]xact correspondence with fact or with a given quality, condition, or event" and explaining that "fidelity implies the unfailing fulfillment of one's duties and obligations and strict adherence to vows or promises");
87. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 845 (1993) ("Fidelity implies strict and continuing faithfulness as to an obligation, trust, or duty.").
88. See, e.g., Brest, supra note 24, at 204 (describing Originalism as theory that "accords binding authority to the text of the Constitution or the intentions of its adopters");
89. James A. Gardner, The Positivist Foundations of Originalism: An Account and Critique, 71 B.U. L. REV. 1, 7 (1991) (noting diversity of originalist views, but identifying as core premise of Originalism that "the role of judges in constitutional cases is simply and exclusively to discover and give effect to the meaning of the Constitution as embodied in the constitutional text and the original intentions of the founders").
90. In what is possibly the only book-length investigation of the historical development of originalist jurisprudence, Johnathan O'Neill characterizes Originalism as comprising "several closely related claims about the authoritative source of American constitutional law," among them an "insist[ence] that interpreters be bound by the meaning the document had for those who gave it legal authority." O'NEILL, supra note 14, at 1-2 (2005);
91. see also, e.g., JOHN H. GARVEY, T. ALEXANDER ALEINIKOFF & DANIEL A. FARBER, MODERN CONSTITUTIONAL THEORY: A READER 91 (5th ed. 2004) (describing Originalism as view "that the original intent of the framers ought to control constitutional interpretation");
92. Peter J. Smith, The Marshall Court and the Originalist's Dilemma, 90 MINN. L. REV. 612, 619 (2006) ("Originalism is a theory of constitutional interpretation that assigns dispositive weight to the original understanding of the Constitution or the constitutional provision at issue.").
93. Admittedly, I am not sure how to prove this claim to those who remain skeptical notwithstanding the supportive quotations I have already presented and those I will marshal later in the Article. So any reader who doubts my rendering of Originalism as strong originalism-because she believes, for example, that most references to Originalism mean something else (say, moderate originalism) or that usage is so variable as to render any generalization false-ought to read the term Originalism in this Article to mean strong originalism by stipulation. For example, the title of this Article would become "Strong Originalism is Bunk." Any reader who thinks that so few originalists defend strong originalism as to make its repudiation uninteresting should probably stop reading now.Even readers who accept that a sufficiently large percentage of scholarly and judicial advocates for originalism simpliciter (including a sufficiently large number of the most prominent among them) mean thereby to endorse strong originalism-enough to justify their critics in likewise treating originalism simpliciter to mean strong originalism-might still question whether that is the more desirable course. That is, even if I am justified in equating Originalism with strong originalism, one might prefer to retire the term originalism, when used without modification, and speak instead of more narrowly and particularly defined neighborhoods within originalist space. This proposal has much to recommend it. It likely would facilitate greater clarity of thought and a greater likelihood of successful communication between writer and reader. However, I do not embrace that advice here-the title does, after all, promise a critique of "originalism" and not of "strong originalism"-only because for a critic of strong originalism to take that first step would amount to something like unilateral disarmament: Persons who become aware of the Article's existence but who don't read it (a class that, however small, will nonetheless dwarf the class of persons who do read it) are apt to suppose that it targets a (perhaps minor) variant of originalism, leaving the core of originalism unscathed. If and when self-described originalists make clear to their readers either that the form of originalism they defend is "strong originalism" and not something that can meaningfully be rendered as originalism proper or originalism simpliciter, or (even better!) that they disavow strong originalism in favor of something more modest, then I will happily announce that the concept of originalism proper has no usable meaning, least of all that it should be construed as strong originalism.
94. For the remainder of this Article, for expositional ease, I will generally refer only to original meaning, with the understanding that my comments also apply to original intent and original understanding (or any other possible originalist object) unless the context makes clear otherwise. Likewise, I will generally omit the parenthetical qualification about judicial precedent. In doing so, I will not mean to deny the empirical fact that contemporary Originalists divide over the propriety of judges adhering to judicial precedents that they now believe to be inconsistent with original meanings. I will, however, raise some doubts about whether Originalists who recognize this one exception to strong originalism have good arguments for going this far but no farther. See infra Part I.C.5.
95. South Carolina v. United States, 199 U.S. 437, 448 (1905).
96. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 426 (1856). Given the universal opprobrium that attaches to Dred Scott, it is unsurprising that Originalists would seek to disavow it. Some argue, accordingly, that Taney got the original meaning of the relevant constitutional provisions wrong.
97. BORK, supra note 20, at 30;
98. Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 LOY. L.A. L. REV. 1159,1172-74 (1992).
99. This could be correct; I quote from Dred Scott because it contains a particularly clear and forceful statement of strong originalism, not to defeat Originalism by showing that it compelled the result in Dred Scott. In a most shameless display of the adage that the best defense is a good offense, however, Originalists have frequently sought to turn tables on their opponents by laying Dred Scott at the feet of the non-originalists, as when then-Justice Rehnquist described it as "[t]he apogee of the living Constitution doctrine during the nineteenth century." William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 700 (1976).
100. (For an astute assessment and criticism, see generally Christopher L. Eisgruber, Dred Again: Originalism's Forgotten Past, 10 CONST. COMMENT. 37 (1993).)
101. Representative is the contention of the Meese Justice Department that, although Taney "paid lip service" to originalism, in fact the decision "was plainly the result of [non-originalism]." DOJ SOURCEBOOK, supra note 19, at 58.
102. This extraordinary contention rests on the claim that "Taney's opinion relies, not on the original meaning of the due process clause, but on the extraconstitutional notion of substantive due process." Id. at 58-59.
103. This argument is doubly unpersuasive. First and more significantly, although Taney did conclude that the Missouri Compromise violated slaveholders' due process rights, the passage quoted above serves an entirely different conclusion-namely, that black persons could not avail themselves of federal diversity jurisdiction because they could not be "citizens" of the United States within the original meaning of Article III, Section 2. That constitutional ruling was independently sufficient to drive the result in Dred Scott and occupied a far more central role in Taney's opinion. Moreover, it is one that many historians believe Taney got right-even if he plainly overreached in asserting that free blacks had not been recognized as citizens in any states at any time. For a careful discussion, see Mark A. Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENT. 271, 294-302 (1997).
104. To be sure, others are unpersuaded. See, e.g., DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789-1888, at 266 (1985)
105. ("Taney's arguments against the citizenship of free blacks . left a good deal to be desired."). But for an Originalist to claim, as Michael McConnell has, that "Dred Scott was wrong, plainly wrong, not just as a moral matter, but as a legal decision," McConnell, supra, at 1174, is more than Originalist premises can support.Second,although Originalists routinely denounce substantive due process as perhaps the plainest of non-originalist sins, the history is far more complicated than they let on. Here, again, is the DOJ Sourcebook:At a minimum, original meaning jurisprudence limits the range of acceptable choices. The precise original meaning of the due process clause, for example, might be difficult to determine, but at the very least we should be able to agree that the clause is limited to process, and does not entitle courts to conduct a substantive review of the wisdom of legislation.
106. DOJ SOURCEBOOK, supra note 19, at 7-8. That's a reasonable conclusion for a textualist to reach, but not one that an Originalist ought to take too quickly for granted given the plausible contentions that the framing generation treated "due process of law" as a legal term of art roughly synonymous with the Magna Carta's prohibition on certain deprivations except by "the law of the land" and that both phrases had substantive as well as procedural content.
107. See generally John Harrison, Substantive Due Process and the Constitutional Text, 83 VA. L. REV. 493, 542-55 (1997) (concluding that whether Due Process Clauses were generally understood this way in 1791 or 1868 remains open question);
108. Robert E. Riggs, Substantive Due Process in 1791,1990 WIS. L. REV. 941 (concluding that educated persons in 1791 probably would have understood Due Process Clause to impose both substantive and procedural limitations on state action).
109. Living constitutionalism is frequently characterized, by proponents and critics, as the view that, at least with respect to constitutional provisions centrally concerned with moral values like liberty and equality, courts ought to follow evolving or contemporary norms. See generally GOLDFORD, supra note 14, at 57-61.
110. Thus one respected commentator presents constitutional interpreters as faced with a simple binary choice: "whether American constitutionalism ... obligates interpreters to base decisions on what the framers had in mind when they wrote the Constitution or whether it obligates interpreters to adapt general constitutional principles to changing circumstances or more enlightened sensibilities." 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. 191,192 (1997). If, as Gillman plausibly claims, the latter option represents living constitutionalism, then its nonidentity with non-originalism is clear, for nonoriginalists qua non-originalists need not recognize a general obligation to endorse updated or "enlightened" constitutional interpretations; though they necessarily reject the obligation that strong originalists embrace, they need not replace it with some form of competing obligation.
111. Consistency would dictate that the opponents of Originalism be called "nonoriginalists." In this Article, though, I bow to convention and simplicity by omitting the capitalization.
112. See, e.g., Farber, supra note 1, at 1086 (defining non-originalists as those who "do not find original intent dispositive of contemporary constitutional questions");
113. Kesavan & Paulsen, supra note 8, at 1126 (defining non-originalists as "theorists who believe that constitutional interpretation should not be limited by the intentions of the Framers, the understandings of the Ratifiers, or evidence of the original meaning of the words and phrases of the text").
114. This observation is far from novel, see, e.g., Farber, supra note 1, at 1086;
115. Kavanagh, supra note 9, at 256, but warrants repetition nonetheless.
116. See, e.g., Brest, supra note 24, at 237 & n.124 (observing that "[t]he nonoriginalist treats the text and original history as presumptively binding and limiting, but as neither a necessary nor sufficient condition for constitutional decisionmaking" and adding that "there are some instances in which the nonoriginalist presumption of fidelity to the text and original understanding is very unlikely to be rebutted");
117. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 881 (1996) (observing that "[v]irtually everyone agrees that the specific intentions of the Framers count for something" and seeming to approve of practice in which they count "for something but not everything");
118. Laurence H. Tribe, Comment, in SCALIA, supra note 38, at 93 (agreeing that many constitutional provisions fairly conceived as architectural "probably must be taken to have a fixed meaning that it is the task of the faithful interpreter, whether a judge or anyone else, to identify and preserve").
119. Perhaps relying on sentiments such as these, one commentator has recently observed that "[i]t is common ground amongst originalists and non-originalists alike that the Constitution means what the Framers intended it to mean." Kavanagh, supra note 9, at 274;
120. cf. GOLDFORD, supra note 14, at 77. 78 ("[N]onoriginalists tacitly accept the originalist premise that ['theconstitutional text'] and ['the original understanding of the constitutional text'] are equivalent "). I find this not only mistaken but truly inexplicable.
121. See infra Parts II.B.l, III.B.2.
122. See, e.g., Barnett, supra note 4, at 615-17;
123. Jonathan R. Macey,Originalism as an "Ism," 19 HARV. J.L. & PUB. POL'Y 301, 301 (1996) ("[T]heveryconstitutional scholars who decry originalism most loudly rush to use originalist arguments when they serve their purposes.").
124. See infra Part I.C.2.
125. Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning, 86 GEO. LJ. 569, 571 (1998) (citation omitted).
126. To escape the fallacy, one might propose that the originalism Greenberg and Litman have in mind in the first sentence cannot be strong originalism, for otherwise they would speak of, for example, the "doctrine's contention," rather than its "core notion." That is, the qualifier core might suggest that originalism, in the first sentence, is broader than strong originalism. And if so, then the originalism in the first sentence might be the same as it is in the third, namely moderate originalism. This route out of the fallacy won't work, for it depends on the odd claim that "the core notion of moderate originalism is strong originalism."
127. Reaching the same conclusion is BASSHAM, supra note 6, at 21.
128. See generally Mitchell N. Berman, Originalism and Its Discontents (Plus a Thought or Two About Abortion), 24 CONST. COMMENT. 383 (2007).
129. The literature exploring how social movements affect constitutional change has exploded in recent years, propelled by the work of scholars such as Jack Balkin, Bill Eskridge, Willy Forbath, Robert Post, and Reva Siegel. For a recent discussion, see the Brennan Center Jorde Symposium on Constitutional Law, 94 CAL. L. REV. 1323 (2006).
130. Copious citation to the burgeoning scholarship can be found in the lead lecture of that symposium, Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CAL. L. REV. 1323, 1328 n.13 (2006). For my money, it is in the descriptive analysis and normative theorizing of the two-way interaction between judicial and popular constitutional understanding, and not in its focus on extrajudicial constitutional understandings alone, that the trend toward "popular constitutionalism" is likely to prove most interesting and profitable.
131. On "acoustic separation," see generally Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984).
132. See Balkin, supra note 44, at 292, 338;
133. see also, e.g., KERMIT ROOSEVELT III, THE MYTH OF JUDICIAL ACTIVISM: MAKING SENSE OF SUPREME COURT DECISIONS 47-52 (2006);
134. Kavanagh, supra note 9, at 265.
135. See Greenberg & Litman, supra note 60.
136. This argument is elaborated in Berman, supra note 63, at 384-85.
137. Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 FORDHAM L. REV. 1269, 1284 (1997).
138. Possibly the one partial exception to the latter assertion is Jed Rubenfeld, who has long urged that judges are obligated to follow originally intended applications of constitutional provisions, but asymmetrically. If the original purpose or understanding of a provision was to apply to some particular set of facts, he argues, then judges must abide by those foundational "Application Understandings." In contrast, if the original understanding was that a provision would not apply to some particular set of facts, such foundational "NoApplication Understandings" can be freely disregarded. See generally JED RUBENFELD, REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN CONSTITUTIONAL LAW (2005). For example, because a foundational Application Understanding behind the First Amendment was to prohibit prior restraints, that particular expectation demands our continued fidelity. But that a No-Application Understanding might have been that the First Amendment did not protect nude dancing imposes no demand on contemporary constitutional interpreters. Although I am not ultimately persuaded that strong deference is owed even to Application Understandings, I emphatically exempt Rubenfeld's intriguing and provocative theory from my "bad view" verdict.
139. RONALD DWORKIN, A MATTER OF PRINCIPLE 57 (1985).
140. This is Tribe's paraphrase of Dworkin. See Tribe, supra note 56, at 67.
141. It is a widely expressed sentiment, see, e.g., Sanford Levinson, The Limited Relevance of Originalism in the Actual Performance of Legal Roles, 19 HARV. J.L. & PUB. POL'Y 495, 496 (1996) ("[W]e are all originalists.");
142. Michael J. Perry, The Legitimacy of Particular Conceptions of Constitutional Interpretation, 11 VA. L. REV. 669, 718 (1991)
143. ("[W]e are all originalists now-or should be."), but one that should provoke concern. As Gregory Bassham observed, "In any important debate, whenever one side declares 'We are all x now,' it is a pretty safe bet that the debate has taken a wrong turn-or that someone is trying to pull a fast one." Gregory Bassham, Justice Scalia's Equitable Constitution, 33 J.C. & U.L. 143, 154 (2006). In my view, the "we are all originalists" claim takes several wrong turns, the most common being the failure to recognize the signal importance of what I have called the dimension of strength.
144. See, e.g., Jeffrey Rosen, Originalist Sin, NEW REPUBLIC, May 5, 1997, at 26
145. (reviewing JACK N. RAKOVE ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996),
146. and SCALIA, supra note 38) ("We are all originalists now. That is to say, most judges and legal scholars who want to remain within the boundaries of respectable constitutional discourse agree that the original meaning of the Constitution and its amendments has some degree of pertinence to the question of what the Constitution means today."). If I'm right that what its advocates mean by "originalism" is strong originalism, then weak and moderate originalists are not originalists, in the relevant sense.
147. The issue I address here should not be confused with the related but distinct problem that arises when bona fide intentions turn out to conflict with each other. Consider Bork's famously unpersuasive effort to establish that Brown v. Board of Education is consistent with originalism. That argument claims that the original intent or understanding of the Equal Protection Clause incorporated the principle of "equality," or "equality before the law," and that the ratifiers intended to preserve racial segregation given their (mistaken) belief that it furnished such equality.
148. BORK, supra note 20, at 81-83. This situation too might be said to present judges with a choice about which intent-the specific or the general-to privilege. In fact, I think cases such as this present a conflict between intended meaning and intended or expected applications and that all or almost all originalists arecommitted to the former. In any event, this type of situation is distinct from that in which an interpreter might wish to interpret some constitutional concept or principle at a level of abstraction different from what was originally meant or intended. I am focusing on the latter situation.
149. See, e.g., BORK, supra note 20, at 149 ("The role of a judge committed to the philosophy of original understanding is not to 'choose a level of abstraction.' [A] judge should state the principle at the level of generality that the text and historical evidence warrant.");
150. WHITTINGTON, supra note 14, at 187 ("[T]he search for intention must be guided by the historical evidence itself. The level of generality at which terms were defined is not an a priori theoretical question but a contextualized historical one.").
151. See supra note 23 and accompanying text.
152. See generally Nelson, supra note 38, at 547 ("[M]embers of the founding generation do not seem to have anticipated constant reinterpretation of the Constitution[T]hey expected subsequent practice to liquidate the indeterminacy and to produce a fixed meaning for the future.").
153. See, e.g., Whittington, supra note 15, at 611 ("[I]t is entirely possible that the principles that the founders meant to embody in the text were fairly abstract. It is also possible that the founders merely meant to delegate discretion to future decisionmakers to act on a given subject matter with very little guidance"). In correspondence, Dick Fallon questions whether all Originalists need accept this possibility. That they might not, he offers, suggests another dimension of variability within originalist logical space.
154. E-mail from Richard H. Fallon, Jr., Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School, to author (Feb. 5, 2008, 15:24 CST) (on file with the New York University Law Review).
155. Cf. Rosenthal, supra note 4, at 2 (arguing that original understanding of Due Process Clause was as directive for courts to evolve common law of requisite procedures for deprivation of liberty and property interests).
156. Still, it is an overstatement to conclude that "[t]his move from specific intentions to general principles eliminates any meaningful distinction between originalism and nonoriginalism." Eric J. Segall, A Century Lost: The End of the Originalism Debate, 15 CONST. COMMENT. 411, 432 (1998).
157. Gary Lawson is perhaps the best example. See generally, e.g., Gary Lawson, On Reading Recipes and Constitutions, 85 GEO. L.J. 1823 (1997).
158. Solum, supra note 39.
159. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 862 (1989).
160. Condition (b) is required by the fact that everybody recognizes that stare decisis is not an inexorable command, especially in constitutional cases. For Scalia's views of constitutional stare decisis, see, for example, BMW of North America, Inc. v. Gore, 517 U.S. 559, 599 (1996) (Scalia, J., dissenting), Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 982-83 (1992) (Scalia, J. concurring in judgment in part and dissenting in part), and Walton v. Arizona, 497 U.S. 639, 672-73 (1990) (Scalia, J., concurring in part and concurring in judgment).
161. See, e.g., Can Originalism Be Reconciled with Precedent? A Symposium on Stare Decisis, 22 CONST. COMMENT. 257 (2005).
162. The argument that many judicial constitutional precedents are irreversible and that stare decisis thus presents a challenge to originalism was perhaps first pressed in Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723 (1988).
163. It was contested in Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23 (1994).
164. The classic study is EVERETT SOMERVILLE BROWN, THE CONSTITUTIONAL HISTORY OF THE LOUISIANA PURCHASE: 1803-1812 (1920).
165. For a recent argument (challenging conventional wisdom) that Jefferson's own doubts on this score were well founded, see generally Robert Knowles, The Balance of Forces and the Empire of Liberty: States' Rights and the Louisiana Purchase, 88 IOWA L. REV. 343 (2003).
166. See, e.g., James E. Ryan, Does It Take a Theory? Originalism, Active Liberty, and Minimalism, 58 STAN. L. REV. 1623, 1628 n.31, 1631 (2006) (intimating that Scalia views stare decisis as only exception to Originalism).
167. See SCALIA, supra note 38, at 138-40 (acknowledging that some judicial precedents "are effectively irreversible," and urging that "stare decisis is not part of [his] originalist philosophy; it is a pragmatic exception to it").
168. Scalia, supra note 82, at 861.
169. See id.
170. As Randy Barnett notes, Scalia "proves unfaithful to the original meaning of the text" in yet a third way: "[H]e is willing to ignore the original meaning of those portions of the Constitution that do not meet his criteria of the rule of law as the law of rules." Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. CIN. L. REV. 7, 13 (2006). Barnett is surely right that, when original meaning is not sufficiently rule-like to suit his tastes, Scalia often abandons the former in favor of more rule-like doctrine that better constrains judges in future cases. However, I'm disposed to treat this fact, not as a qualification to, or modification of, his basal commitment to Originalism, but as evidence that, at root, Scalia is not truly an Originalist but rather a rulist.
171. See, e.g., Richard H. Fallon, Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. REV. 1107, 1132 (2008).
172. Mark Greenberg, The Standard Picture and Its Discontents 5 (UCLA Sch. of Law Research Paper No. 08-07, 2008), available at http://ssrn.com/abstract=1103569.
173. Id. at 8.
174. Id. at 10.
175. This is an observation made frequently by my colleague Sandy Levinson. See, e.g., Sanford Levinson, Why Professor Lynch Asks the Right Questions, 31 SETON HALL L. REV. 45, 48 (2000).
176. U.S. CONST, art. Ill, §1.
177. On Greenberg's view, incidentally, the standard picture is a naive oversimplification. Rather, he would view the content of law as a complex function of, or operation upon, legal sources. Determining what the law is, then, depends upon the successful completion of at least three fairly discrete tasks: identifying legal sources; interpreting these sources to ascertain their meanings; and combining or integrating these meanings, or these sources, to constitute the law. On this jurisprudential account, there is no one-to-one relationship between a legal text and the law, thereby (it seems to me) problematizing the very concept of constitutional law. That is, constitutional law is distinguished from other forms of law, not in the simple way that it is the meaning (semantic, linguistic, or legal) of the Constitution, but in a more functional sense as being the supreme law. Though I won't pursue the issue further, it seems plain to me that to adopt this view would make the Originalist case harder not easier. Surely one who extols Originalism as a means to limit judicial subjectivity is not likely to smile on a theory that recognizes multiple sources of constitutional law.
178. Cf. Barnett, supra note 4, at 650;
179. Farber, supra note 1, at 1097 ("[A]n originalist might take into account not only judicial precedents but also the changing views of those adopting later constitutional provisions. For example, those who ratified the fourteenth amendment's due process clause may have had a broader concept of the meaning of due process than their predecessors who adopted the fifth amendment's due process clause. Yet it would be incongruous to give the two due process clauses different interpretations today.");
180. Tribe, supra note 56, at 86-87.One recently proposed solution that I do feel confident in rejecting is that the original meaning of a constitutional amendment is constituted by the hypothetical understandings of a reasonable person at the time of ratification of the 1787 Constitution.
181. See Lawson & Seidman, supra note 19, at 75-76 ("Though the matter is hardly free of doubt, we offer the suggestion that the reasonable person of 1788-the original 'We the People of the United States'-is the reference point for all interpretative issues until the document itself otherwise specifies.").
182. This strikes me as a fair characterization of extant arguments for Originalism. I do not want to insist, though, that there is no possible room for arguments that are not most fairly classified as consequentialist and yet that are more perspicuously viewed as soft than as hard. See infra note 198 and accompanying text.
183. And keep in mind that the hard/soft distinction is advanced only as a potentially useful classificatory tool. The core argument of this Article-that existing arguments for Originalism are extremely unpersuasive and that the likelihood of ultimately successful arguments is remote-does not depend upon it. See supra note 28.
184. Many theorists have conceived of constitutional adjudication as consisting of two distinct steps, both prior to the application of law to facts to reach a case-specific holding. Originalists like Keith Whittington and Randy Barnett, for example, argue that when constitutional interpretation produces meaning that is vague or ambiguous, other legal actors, including judges, can make the law more determinate through a process of "constitutional construction." See generally KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION (1999);
185. Barnett, supra note 4. Kim Roosevelt and I have argued that courts often (and permissibly) craft "decision rules" that facilitate the case-by-case application of courtinterpreted constitutional meaning by minimizing some of the costs produced by the fact that constitutional law is judicially enforced.
186. See ROOSEVELT, supra note 66, at ch. 2;
187. Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1 (2004);
188. see also Mitchell N. Berman, Aspirational Rights and the Two-Output Thesis, 119 HARV. L. REV. F. 220, 221 (2006), http://www.harvardlawreview.org/forum/issues/119/march06/berman.pdf ("[J]udicial review requires devices that direct courts how to decide whether [judgedetermined constitutional] meaning is met.").
189. Dick Fallon, Henry Monaghan, and Larry Sager have advanced broadly similar accounts of how courts refine or supplement constitutional norms or propositions. See RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 1-12, 76-77 (2001) (distinguishing constitutional norms from implementing doctrine);
190. Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 30-31 (1975) (distinguishing "constitutional common law" from "Marbury-shielded constitutional exegesis");
191. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1213-14 (1978) (distinguishing judge-announced "[institutional] constructs" from "consti-tutional norms"). All such accounts, I believe, recognize two conceptually distinct stages of constitutional adjudication (even if the courts rarely expressly distinguish the two in the course of their opinions). When I speak of constitutional "interpretation," I am referring to the initial and conceptually distinct step of deriving legal meaning or legal content from the constitutional text.
192. For a compact and reasonably accessible overview of debates over interpretation in philosophy and literary theory, see GUYORA BINDER & ROBERT WEISBERG, LITERARY CRITICISMS OF LAW ch. 2 (2000).
193. See also Symposium, Interpretation, 58 S. CAL. L. REV. 1 (1985). An excellent electronic source is the Johns Hopkins Online Guide to Literary Theory and Criticism, http://litguide.press.jhu.edu/ (last visited Feb. 22, 2009).
194. M2 See infra note 103.
195. Steven Knapp & Walter Benn Michaels, Against Theory, 8 CRITICAL INQUIRY 723, 724 (1982).
196. As this passage suggests, Knapp and Michaels are best read to take the first position identified in the text accompanying supra note 102.
197. See also generally Steven Knapp & Walter Benn Michaels, A Reply to Our Critics, 9 CRITICAL INQUIRY 790 (1983) (further developing this position). In doing so, they part ways with their intentionalist predecessor E.D. Hirsch who, they say, adopts the second.
198. See generally E.D. HIRSCH, JR., VALIDITY IN INTERPRETATION (1967).
199. 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).
200. Id. at 1122. Oddly, Fish's greatest fame as a literary theorist derives from his role as a proponent of reader-response criticism, which is usually understood to be firmly antiintentionalist. In a postscript to a recent French edition of his famous collection of essays, Is There a Text in This Class?, however, Fish explains that his earlier work erroneously conflated descriptive and normative accounts of interpretation.
201. See STANLEY EUGENE FISH, Postscript to QUAND LIRE C'EST FAIRE: L'AUTORITÉ DES COMMUNAUTÉS INTERPRETATIVES [IS THERE A TEXT IN THIS CLASS? THE AUTHORITY OF INTERPRETIVE COMMUNITIES] (Etienne Dobenesque trans., 2007).
202. His present view is that interpretive communities do drive what is taken as a successful interpretation in any given time and place but that the true or correct interpretation is always and necessarily the meaning that the author intended. See id.
203. I don't describe the converse as necessarily false only because intentionalism does not itself have anything to say about whether and when somebody should endeavor to interpret a text. A constitutional theorist who embraces intentionalism but who rejects the view (common though it is) that the appropriate relationship between court-announced constitutional law and the constitutional text is properly described as involving interpretation need not be an Originalist. See infra note 109.
204. Graglia, supra note 23, at 1024;
205. see also, e.g., id. at 1029;
206. Paul Campos, Three Mistakes About Interpretation, 92 MICH. L. REV. 388, 397 (1993) ("[T]he meaning of a text is always what its authors intended it to mean .").
207. Although intentionalists necessarily focus on the intentions of the text's authors and therefore favor intent over public meaning, it does not necessarily follow that they urge inquiry into the intent of the framers as opposed to that of the ratifiers. It all depends on whom we identify as the Constitution's authors. If we conceive of the author as the ratifiers, then intentionalism can support original ratifiers' intent originalism. See, e.g., Larry Alexander, All or Nothing at All? The Intentions of Authorities and the Authority of Intentions [hereinafter Alexander, All or Nothing at All?], in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 357, 363 (Andrei Marmor ed., 1995) [hereinafter LAW AND INTERPRETATION] (arguing that meaning intended by authorities who author legal text should control);
208. Steven Knapp & Walter Benn Michaels, Not a Matter of Interpretation, 42 SAN DIEGO L. REV. 651, 667 (2005) ("[Njothing in the logic of interpretation itself can tell us which of those stages [of drafting, ratification, and judicial review] should count as the one that confers on the text the meaning we are trying to interpret.").
209. But see Larry Alexander, Originalism, or Who Is Fred?, 19 HARV. J.L. & PUB. POL'Y 321, 325-26 (1996) (seeming to endorse possibility that persons whose intentions count for purposes of constitutional interpretation could be neither framers nor ratifiers but rather average speakers of English in 1787). This point will bear greater significance later. In any event, whether the "authors" whose intentions intentionalist-Originalists seek to discover are the framers or the ratifiers (or somebody else), intentionalist-Originalists focus on subjective intentions, not objective public meanings. Yet, surprisingly, one prominent Originalist seems to deny precisely that. Michael Paulsen has recently protested that it is "a caricature of originalism" to portray it as "a version of crude intentionalism that focuses on the specific subjective intentions or expectations of individuals as to how a provision might be applied." Instead, he says, originalists "focus[ ] on the objective linguistic meaning of the words of a text (taken in historical context)."
210. Paulsen, supra note 23, at 2059.
211. This is a false dichotomy. As I have already suggested, see supra Part I.C.2, Paulsen is right to deny that contemporary originalists focus on the subjectively intended or expected applications of the text. But he is wrong to suggest that it follows that contemporary originalism is focused exclusively on public meaning and not subjective intentions. It does not follow because authors can have intentions about applications and intentions about meaning, and these need not be the same thing.
212. See generally BASSHAM, supra note 6, at 29 (distinguishing among an author's scope beliefs, counterfactual scope beliefs, and semantic intentions);
213. McConnell, supra note 69, at 1284-85 (criticizing Dworkin for failing to distinguish between framers' "expectations about specific applications" and "moral and political principles they intended to express"). Not only does the conclusion not logically follow, it is empirically false.
214. See, e.g., Lawson & Seidman, supra note 19, at 49 n.12 (recognizing that "[t]here are notable dissenters who continue to focus on concrete historical intentions" rather than public meaning).
215. To be sure, this view does not present originalism as inescapable, full stop. It is not internal to an intentionalist theory of constitutional interpretation that courts engaging in constitutional adjudication must engage in constitutional interpretation. The possibility remains, for example, that constitutional adjudication ought to proceed without regard for the Constitution's meaning, that we could have constitutional adjudication without constitutional interpretation. A view of this sort still qualifies as a form of hard originalism, however, for I have defined that term to encompass, in addition to the (super hard) view that originalist interpretation follows from either necessary or conceptual truths, the (ordinary hard) possibility that such interpretation is logically necessary given a set of premises that, while not themselves necessary, are in fact noncontroversial.
216. Paul F. Campos, A Text Is Just a Text, 19 HARV. J.L. & PUB. POL'Y 327, 327-28 (1996);
217. see also, e.g., STEVEN D. SMITH, LAW'S QUANDARY 106-07 (2004) (discussing inter-pretation of recipe);
218. Larry Alexander & Saikrishna Prakash, "is That English You're Speaking?" Why Intention Free Interpretation Is an Impossibility, 41 SAN DIEGO L. REV. 967, 975 (2004) (discussing interpretation of order in restaurant).
219. This point is forcefully emphasized in, for example, Walter Sinnott-Armstrong, Word Meaning in Legal Interpretation, 42 SAN DIEGO L. REV. 465, 468 (2005).
220. Even the New Critics who launched the assault on intentionalism in the first half of the last century were arguing about how to interpret literary works. They acknowledged that many texts ought to be interpreted in accordance with the apparent intent of their authors. See, e.g., BINDER & WEISBERG, supra note 101, at 117.
221. As the prominent New Critic Monroe Beardsley emphasized: No one can deny that there are many practical occasions on which our task is precisely to try to discover authorial meaning, or intention: When there is a difficulty in reading a will or a love letter, or in grasping an oral promise or instruction, our primary concern is with authorial meaning. MONROE C. BEARDSLEY, THE POSSIBILITY OF CRITICISM 31 (1970).
222. See supra Part I.B.2.
223. The most familiar distinction, initially proposed by Paul Grice half a century ago, lies between speaker's meaning and sentence meaning. See PAUL GRICE, STUDIES IN THE WAY OF WORDS chs. 5-6 (1989). Yet theorists continue to debate exactly how Grice meant to distinguish these two types of meaning and whether the distinction, as Grice is best understood to have drawn it, can be defended.
224. See generally Stephen Neale, Paul Grice and the Philosophy of Language, 15 LINGUISTICS & PHIL. 509 (1992). I will eschew the terms "speaker's meaning" and "sentence meaning" to try to reduce the risk that I be understood to incorporate aspects of the Gricean intentionalist apparatus.
225. Jerrold Levinson, Intention and Interpretation: A Last Look, in INTENTION AND INTERPRETATION 221, 222-23 (Gary Iseminger ed., 1992).
226. As Fred Schauer has put the point: Yet if language is [intentionalist] in this sense, it is hard to imagine why a word or a phrase is a piece of evidence of one intention rather than another intention. Then, for language to be evidence of "something" rather than "something else," it must have some independent capacity without circular reference to the subject of which it is evidence. To put it somewhat more simply, the ability of language to be evidence of something presupposes that language, according to rules of language or according to conventions of language, can carry meaning. If language itself can carry meaning, however, then it turns out that as a descriptive account of language, [intentionalism] is not plausible. Frederick Schauer, Defining Originalism, 19 HARV. J.L. & PUB. POL'Y 343, 344 (1996).
227. See, e.g., Colin Lyas, Wittgensteinian Intentions, in INTENTION AND INTERPRETATION, supra note 114, at 132, 146-47.
228. For the qualification that this argument works only when (as is usually the case) the author's intentions are linguistic in character, see George Dickie & W. Kent Wilson, The Intentional Fallacy: Defending Beardsley, 53 J. AESTHETICS & ART CRITICISM 233, 237-38 (1995).
229. Richard Shusterman, Interpreting with Pragmatist Intentions, in INTENTION AND INTERPRETATION, supra note 114, at 167, 168.
230. I say "seem" because, in correspondence, Jonathan Gingerich has argued that this example doesn't rebut intentionalism because the reasons for interpreting a text in any given context rest on the author's intention. E-mail from Jonathan Gingerich, J.D. Candidate, Harvard Law School, to author (Jan. 19, 2008, 20:38:00 EST) (on file with the New York University Law Review). In particular, we interpret the announcement to mean midnight instead of noon only because its author intended the text to mean whatever a competent speaker of the language would ordinarily understand it to mean. First and foremost, Gingerich supposes, she intended to put people on notice, and while she may also have intended that "12:00 a.m." mean "noon." the former intention was more important to her than the latter. If she were to read the text after it had been published, she would probably agree that it meant midnight. So, the intentionalist could say, when we ascribe the utterance meaning to a text, we're doing so because we've decided that the author of the text intended it to have whatever meaning it would ordinarily be given by a competent speaker of the language, and that this intention was more important to the author than other, possibly conflicting, intentions about the meaning of particular words. I think this effort to avoid a conflict between intentionalists and their opponents does not succeed because it is an entirely contingent question whether the author of the announcement did intend the text to mean "whatever a competent speaker of the language would ordinarily understand it to mean." That could be, but I don't think that it must be, and I believe that our disposition to interpret the text to mean midnight doesn't depend on whether the author did in fact have the intention Gingerich posits. If the author (perhaps unreasonably) continues to insist that the announcement ought to be interpreted and enforced in accordance with utterer's meaning, I maintain that most of us would just respond that, actually, the announcement means midnight, and be done with it-withoutbothering to reconcile this fact with any other intentions the author might (or might not) have had.
231. For a representative argument that proceeds along the following lines, see Alexander & Prakash, supra note 110, at 974-82.
232. Fish, supra note 23, at 635.
233. Alexander & Prakash, supra note 110, at 967.
234. See, e.g., Michael S. Moore, Interpreting Interpretation, in LAW AND INTERPRETATION, supra note 108, at 1, 8;
235. Sinnott-Armstrong, supra note 111, at 474-77.
236. See, e.g., Jeffrey Goldsworthy, Moderate Versus Strong Intentionalism: Knapp and Michaels Revisited, 42 SAN DIEGO L. REV. 669, 670 (2005) (arguing that authorial intention to convey meaning is necessary for text to have meaning but not sufficient to establish what that meaning is);
237. Levinson, supra note 114, at 232 (distinguishing semantic from categorial intentions).
238. See Fish, supra note 23, at 632-33 ("Words alone, without an animating intention, do not have power, do not have semantic shape, and are not yet language; and when someone tells you (as a textualist always will) that he or she is able to construe words apart from intention and then proceeds (triumphantly) to do it, what he or she will really have done is assumed an intention without being aware of having done so." (italics in original omitted)).
239. Fish, supra note 104, at 1129.
240. Id. at 1133.
241. Id. at 1138 n.98 (citation omitted). Although the passage above recognizes only three possible interpretive objects-authorial intention, inherent textual meaning, and the interpreter's desires-elsewhere Fish has contemplated a somewhat richer menu of alternatives: "Nor," he added (in that earlier formulation), does a text mean what is specified by the conventions of the day because conventions do not have intentions and they do not author texts. Nor does it mean what the ordinary or ideal or reasonable interpreter would mean by the words because none of those authored the text either, and declaring any one of them the author by fiat would amount to rewriting, not interpreting.
242. Fish, supra note 23, at 644-45. But these arguments for rejecting, as the target of interpretation, the meanings that conventions and hypothetical reasonable interpreters (or speakers) seem to direct are circular: That conventions do not have intentions and do not author texts is a reason why a text does not mean what the conventions prescribe only on the assumption that authorial intentions are the key to meaning. That one who would identify a text's meaning as what would be meant by an ordinary or ideal or reasonable interpreter effectively declares one of them the author by fiat and assumes that the meaning must come from the author and nowhere else. But both assumptions capture precisely what is in dispute.
243. Knapp & Michaels, supra note 108, at 664.
244. This is the overarching theme of HIRSCH, supra note 103.
245. See, e.g., DOJ SOURCEBOOK, supra note 19, at 4 ("[I]f the courts go beyond the original meaning of the Constitution . [t]hey transform our constitutional democracy into a judicial aristocracy, and abandon the rule of law based on a judge's subjective notions of what is best for society.");
246. Barnett, supra note 4, at 651 (presenting strong originalism as only alternative to allowing government officials to give meaning to Constitution "in their unfettered discretion").
247. Fish, supra note 23, at 644.
248. Joseph Margolis, Robust Relativism, in INTENTION AND INTERPRETATION, supra note 114, at 41.
249. Id. at 48.
250. Some texts might occupy more than one category of utterance-either by virtue of an author's multiple categorial intentions or perhaps given needs of different audiences. An expatriate poet working as a spy might pen verse that is intended to function both as an elegy and as a report about the enemy's munitions capacity. As a clandestine report, the text's meaning is utterer's meaning; as a poem, its meaning might be something else.
251. This view bears some similarity to Andrei Marmor's, the principal difference being that he would describe interpretations that do not seek to attribute to a text the meaning actually intended by its author as attributions of counterfactual intentions to fictitious or stipulated authors. See MARMOR, supra note 5, at 21-25.
252. A kindred view has been advanced under the caption "hypothetical intentionalism" in Levinson, supra note 114.
253. See also Daniel O. Nathan, Irony, Metaphor, and the Problem of Intention, in INTENTION AND INTERPRETATION, supra note 114, at 183, 202 n.29 (citing works);
254. William E. Tolhurst, On What a Text Is and How It Means, 19 BRIT. J. AESTHETICS 3, 11-12 (1979). As I understand it, Marmor's approach and others like it preserve the structure or "grammar" of intentionalism but abandon its substance. I am weakly disposed to find the fictitious author device unnecessary and potentially misleading. But hypothetical intentionalism is enough to defeat Originalism.
255. Cf. Saikrishna Prakash, Radicals in Tweed Jackets: Why Extreme Left-Wing Law Professors Are Wrong for America, 106 COLUM. L. REV. 2207, 2224 (2006) ("If we have -identified some method of finding meaning in inconsequential documents, we can apply the same method to finding meaning in consequential documents.").
256. I note in passing that utterance meaning and ludic meaning together describe a broad terrain that might, with profit, be more finely subdivided.
257. Compare Gerald Postema's explanation of how "the collaborative nature of" the common law disciplines analogical reasoning: While it is always individuals who participate in analogical reasoning in law, they proceed with a keen sense that they deliberate, as Hart put it, not each for his own part only, but as members of a larger whole. . . . This capacity for reflective judgment is a social capacity, the ability to reason from a body of supposed shared experiences to solutions to new practical problems, to judge what one has good reason to believe others in the community would also regard as reasonable and fitting. These judgments can be made with confidence, not because one is a good predictor of other's behaviour, but because one understands at a concrete level the common life in which they all participate. Gerald J. Postema, Philosophy of the Common Law, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 588, 607 (Jules Coleman & Scott Shapiro eds., 2002) (citation omitted). I am making a broadly similar claim about the interpretation of legal texts.
258. H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659, 697 (1987).
259. Fish, supra note 104, at 1138 n.98 (emphasis added).
260. Id. at 1122. To this, the intentionalist might reply that even if some interpreters (like judges) might possibly be searching for the understandings of a text held by some other community of interpreters, members of that community must themselves be searching for some meanings, and those meanings cannot be contemporary meanings without circularity. And if the members of the community whose understandings judges seek are themselves aiming for the originally intended meanings, then, even if judicial interpreters can possibly be searching for popular understanding, they are properly described as searching for beliefs about intentionalist meanings. On this account, intentionalist meanings remain essential, though they are filtered, or provide meaning at one remove.
261. See, e.g., Campos, supra note 107, at 391-92. This argument fails, for nonjudicial interpreters might not be searching for original meanings, let alone original intentions about meaning. They might, e.g., be self-consciously constructing meaning. Or they might naively believe that language "just has" meaning. Or they might be searching for what a contemporary community with which they affiliate or identify takes the Constitution to mean. In short, the community need not have a theory at all. They might have only customs and patterns of practice. "I know it when I see it" might make for bad constitutional doctrine but need not be a false description of how ordinary people evaluate a proffered interpretation of a text's meaning.
262. Knapp & Michaels, supra note 108, at 666 n.37.
263. See id. at 667 ("Legal texts are often the products of multiple stages of drafting and ratification, not to mention the revision that some say occurs in judicial review. But nothing in the logic of interpretation itself can tell us which of those stages should count as the one that confers on the text the meaning we are trying to interpret when we try to obey the law or to adjudicate it.").
264. I don't see any obvious basis for allowing judicial decisions purporting to interpret the Constitution to count as a re-authoring of the text while categorically excluding purported constitutional interpretations that occur outside the courts-whether in the halls of Congress, the op-ed pages of the nation's newspapers, or the coffee shops and Internet chatrooms frequented by the American public. See supra Part I.C.5.
265. Arguments from authority often appear intermingled with arguments from legitimacy. See, e.g., Barnett, supra note 4, pts. 1-3;
266. Kay, supra note 15, at 228, 232-34. Little needs to be said about the legitimacy-based arguments. If sociological legitimacy is at issue, then whether non-originalist interpretation enjoys legitimacy, and how much, are empirical questions-in fact, empirical questions the answers to which originalist scholarship does more to (try to?) effect than to resolve. If the theorists mean that non-originalist interpretation lacks normative legitimacy then it is a conclusion, not an argument. Presumably, the argument that would support such a conclusion sounds in authority, good consequences, or some combination of the two.
267. WHITTINGTON, supra note 14, at 46.
268. id.
269. Thomas C. Grey, The Constitution as Scripture, 37 STAN. L. REV. 1, 14-15 (1984).
270. GOLDFORD, supra note 14, at 77.
271. WHITTINGTON, supra note 14, at 50.
272. Id. at 49.
273. Whittington also provides extensive argument, grounded in the nature of popular sovereignty, to support the proposition that we should treat the Constitution as binding. See id. at 128-35.
274. For the most part, we can safely put that aspect of his argument aside, careful and illuminating as it is, because no parties to the academic or judicial debate seem to disagree. See, e.g., GOLDFORD, supra note 14, at 74-75;
275. Larry Simon, The Authority of the Constitution and Its Meaning: A Preface to a Theory of Constitutional Interpretation, 58 S. CAL. L. REV. 603, 606 (1985). What does warrant mention, however, is the conclusion to Whittington's analysis, where he moves from arguing that respect for popular sovereignty justifies our treating the Constitution as authoritative to contending that it also requires originalism as the proper method of constitutional interpretation.
276. See WHITTINGTON, supra note 14, at 152-59.
277. I discuss that argument infra Part III.A.1.
278. See also, e.g., Barnett, supra note 4, at 636 ("We are bound [to respect the original meaning of the Constitution] because we today . . . profess our commitment to a written constitution, and original meaning interpretation follows inexorably from that commitment.").
279. WHITTINGTON, supra note 14, at 61.
280. Id. at 61-62.
281. Id. at 62-65.
282. Id. at 78-79.
283. Id. at 15 (emphasis added).
284. Id.
285. Compare AUSTL. CONST, ch. VIII, §128 ("The Constitution shall not be altered except in the following manner . . . ."),
286. with U.S. CONST, art. V (specifying methods to propose and ratify amendments, implying but not stating that these methods are exhaustive).
287. Jeffrey Goldsworthy, Interpreting the Constitution in Its Second Century, 24 MELB. U. L. REV. 677, 683 (2000) [hereinafter Goldsworthy, Interpreting the Constitution].
288. This is just the kernel of Goldsworthy's more elaborate and sophisticated argument. Interested readers should also consult Jeffrey Goldsworthy, Raz on Constitutional Interpretation, 22 LAW & PHIL. 167 (2003),
289. and Jeffrey Goldsworthy, Originalism in Constitutional Interpretation, 25 FED. L. REV. 1 (1997).
290. Goldsworthy, Interpreting the Constitution, supra note 159, at 684.
291. Id. at 684-85.
292. Id. at 685.
293. This claim is developed further in DANIEL A. FARBER & SUZANNA SHERRY, JUDGMENT CALLS: PRINCIPLE AND POLITICS IN CONSTITUTIONAL LAW (2009). Elsewhere, I have put forth the tentative view that law in general can be fruitfully conceived of in terms of practice-constrained argumentation.
294. See Mitchell N. Berman, Constitutional Theory and the Rule of Recognition: Toward a Fourth Theory of Law, in THE U.S. CONSTITUTION AND THE RULE OF RECOGNITION (Matthew D. Adler & Kenneth Einar Himma eds., forthcoming 2009).
295. See, e.g., JOSEPH RAZ, THE MORALITY OF FREEDOM pt. I (1986).
296. See generally Joseph Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 152 (Larry Alexander ed., 1998).
297. Alexander, All or Nothing at All?, supra note 108, at 382.
298. A similar argument appears in PERRY, supra note 42, at 48.
299. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, supra note 45, at 1793;
300. see also, e.g., WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, supra note 45, at 2370 (defining "then" as "soon after that : immediately after that").
301. See, e.g., Farber, supra note 1, at 1105
302. ("'[T]ext and original understanding exert the strongest claims when they are contemporary and thus likely to reflect current values and beliefs, or simply the expressed will of a current majority ....'" (quoting Brest, supra note 24, at 229));
303. Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 CAL. L. REV. 1482, 1537 (1985) ("The strength of arguments against the Court's deviating from originalist interpretation of amendments decreases with the passage of time.").
304. The highest judicial tribunals in Canada have, since 1930, consistently interpreted Canada's Constitution (and, later, its Charter of Rights) as "a living tree capable of growth and expansion." Edwards v. Att'y Gen. for Can., [1930] A.C. 124, 136 (P.C.) (appeal taken from Can.); see also Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, ¶ 22 (Can.), available at http://www.canlii.org/en/ca/scc/doc/2004/2004scc79/ 2004scc79.pdf.
305. The South African Constitution provides by its own terms that it can be interpreted in accordance with contemporary international norms. See S. AFR. CONST. 1996 ch. II, §39(1).
306. Of course, the judgment "possibly attractive" is intended to withhold a verdict. For sober criticism of the Canadian jurisprudence, see generally Grant Huscroft, A Constitutional "Work in Progress"? The Charter and the Limits of Progressive Interpretation, 23 SUP. CT. L. REV. 2D 413 (2004).
307. BORK, supra note 20, at 143.
308. Although these arguments frequently appear under the heading of "social contract" theories, I eschew that term because it is variously deployed to capture each of the two variants I have now distinguished. Compare, e.g., Dorf, supra note 17, at 1766, 1771 (describing social contractarianism as justification for displacement of legislative action by unelected judiciary),
309. with R. George Wright, Dependence and Hierarchy Among Constitu-tional Theories, 70 BROOK. L. REV. 141, 178 & n.248 (2004) (presenting social contractarianism as basis for requirement that original understanding be adhered to).
310. This is a political conception of democracy. The conception of democracy that Tocqueville emphasized was social-it referred to social conditions, not political institutions. See generally ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Harvey C, Mansfield & Delba Winthrop eds. & trans., Univ. of Chi. Press 2000) (1835).
311. Richard A. Posner, Bork and Beethoven, 42 STAN. L. REV. 1365, 1370 (1990).
312. For a powerful and nuanced argument that judicial review promotes democracy, properly understood, see LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 194-221 (2004), in which the author argues that constitutional adjudication embodies and furthers democratic values by affording each member of the political community a fair and equal right to participate in rights contestation.
313. See also Samuel Freeman, Original Meaning, Democratic Interpretation, and the Constitution, 21 PHIL. & PUB. AFF. 3, 14, 25, 28 (1992) (emphasizing Constitution's political role as public charter expressing values and terms of political association that democratic citizens could reasonably accept, and arguing that democratic values are best respected when these fundamental terms of association are contested through public deliberation, not by appeal to original meanings).
314. WHITTINGTON, supra note 14, at 156.
315. This argument broadly parallels Goldsworthy's argument in supra Part II.B.2.
316. Cf. BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6-7 (1991) (advancing "dualist" conception of American democracy, pursuant to which "the People" govern only during periodic moments of "constitutional politics," with their government governing during ordinary times).
317. One might be tempted to rejoin that, if a supermajority of Americans both understand P to stand for X, and prefer X to Y, then the supermajority can be expected to constitutionalize X in the form of a new constitutional amendment, so a judicial refusal to interpret P to mean X incurs no cost in the currency of popular sovereignty. This is unsound: A supermajority could favor X to an extent sufficient to implicate democratic values even if it is not quite large enough or sufficiently well-distributed geographically to secure a constitutional amendment.
318. This reply to the popular sovereignty/social contractarian argument for Originalism is developed at greater length in Simon, supra note 168, at 1495-505.
319. See supra quoted text accompanying note 174.
320. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, supra note 45, at 522.
321. That is not the same thing as saying that they will think it pointless to engage in "constitutional deliberation." This is essentially the upshot of the first objection I registered.
322. I am grateful to Peter Smith for this point.
323. WHITTINGTON, supra note 14, at 154.
324. See, e.g., Saikrishna B. Prakash, Overcoming the Constitution, 91 GEO. LJ. 407, 432 (2003)
325. (reviewing FALLON, supra note 100) ("[P]rominent originalists claim that only originalism can safeguard the rule of law . . . .").
326. An excellent analysis of the ideal, and its interrelated themes, is BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY (2004).
327. For a more extensive reply to rule of law arguments for Originalism, see Simon, supra note 168, at 1519-35.
328. See, e.g., Graglia, supra note 23, at 1020 (describing Originalism as "almost selfevidently correct ... a virtual axiom of our legal-political system, necessary to distinguish the judicial from the legislative function").
329. We have seen that this is Graglia's view. See supra note 107 and accompanying text. So his claim that non-originalist judicial constitutional interpretation violates the principle of separation of powers is parasitic upon the proposition that nonintentionalist interpretation is self-contradictory.
330. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
331. See, e.g., Posner, supra note 173, at 1381 (discussing Bork's apparent view of matter);
332. Scalia, supra note 82, at 852.
333. Cf. Dorf, supra note 17, at 1772 (making same point about Originalist appeals to "legitimacy").
334. See, e.g., Graglia, supra note 23, at 1026 (arguing that democracy "is served when judge-restraining originalism permits the results of the democratic political process to stand").
335. See, e.g., WHITTINGTON, supra note 14, at 44 ("[J]udicial restraint . . . may not be consistent with ... originalism per se.");
336. Maltz, supra note 11, at 775 (arguing that abstract constitutional guarantee of rights and courts' enforcement of such rights are "two separate inquiries").
337. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (Thomas, J., concurring) (invoking purported original understanding of Commerce Clause to strike down congressional legislation, in contrast to dissenters who, emphasizing non-originalist arguments, would uphold legislation); United States v. Lopez, 514 U.S. 549 (1995) (same); Maryland v. Craig, 497 U.S. 836, 860-61 (1990) (Scalia, J., dissenting) (relying on purported original meaning of Confrontation Clause to advocate invalidation of state procedures allowing testimony of young children in sexual abuse cases by closed-circuit television); Morrison v. Olson, 487 U.S. 654, 697-99 (1987) (Scalia, J., dissenting) (arguing that original understanding of executive power renders Independent Counsel Act unconstitutional); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 568-72, 581-83 (1985) (Powell, J., dissenting) (relying on purported original understanding of Tenth Amendment to argue for striking down congressional legislation that majority upheld); INS v. Chadha, 462 U.S. 919, 946-51, 967-68 (1983) (relying on purported original understanding of presentment, bicameralism, and separation of powers to strike down one-House veto legislation, over non-originalist dissent); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 449, 453-54 (1934) (Sutherland, J., dissenting) (relying on original understanding of Contracts Clause to contend that state legislation upheld by majority is unconstitutional).
338. Cf. 1 F.A. HAYEK, LAW, LEGISLATION, AND LIBERTY 116 (1973) ("[J]udicial decisions may in fact be more predictable if the judge is also bound by generally held views of what is just, even when they are not supported by the letter of the law, than when he is restricted to deriving his decisions only from those among accepted beliefs which have found expression in the written law.").
339. 272 U.S. 52, 136 (1926).
340. See Scalia, supra note 82, at 852.
341. Raz, supra note 165, at 174.
342. See, e.g., GOLDFORD, supra note 14, at 88-89;
343. Raz, supra note 165, at 186.
344. John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 NW. U. L. REV. 383, 383 (2007).
345. Others have argued that consequences broadly conceived supply the touchstone for evaluating any theory of legal interpretation. See, e.g., Posner, supra note 173, at 1373, 1379 & n.76;
346. Simon, supra note 150, at 613-14;
347. Cass R. Sunstein, Of Snakes and Butterflies: A Reply, 106 COLUM. L. REV. 2234, 2238 (2006). I am disposed to think this is correct because I think it implausible that any single interpretive approach would be the subject of a deontological obligation or is entailed by the right understanding of concepts such as law, meaning, or interpretation. If the claim is true, however, it can only be so if we conceive the consequences potentially at issue broadly enough to encompass not only the value of the particular holdings that a given theory reaches (or is likely to reach) but also all the long-term and indirect effects that different interpretive postures and methods produce. Moreover, I would hope that a comparative consequentialist evaluation of different interpretive theories could take into account qualities attaching to the act of interpretation itself-as, for example, whether it exemplifies a judicial virtue or vice. But I am open to being persuaded otherwise. (I am grateful to David Bernard and Ben Zipursky for provoking my doubts on this score.)
348. McGinnis & Rappaport, supra note 199, at 396.
349. Most notably, it seems to me that McGinnis and Rappaport's interesting analysis goes more toward establishing (a) that entrenchments are more likely to be good if adopted via supermajoritarian procedures than if adopted via merely majoritarian procedures, than (b) that the expected consequences of the original meaning are likely to be better than the expected consequences of some other candidate meaning when measured at the time of interpretation. Secondly, and independently, I worry that the authors are insufficiently sensitive to the fact that the 1789 Constitution was ratified as a whole, not provision by provision. This fact would seem to mitigate very substantially the extent to which its supermajoritarian passage bears on the goodness of any given part of the text, making their argument as a whole much less persuasive with respect to judicial interpretation of the articles than with respect to the amendments. Finally, I am not wholly persuaded by the authors' efforts, see id. at 394-95, to rebut the objection that the heuristic value of the supermajoritarian process is diminished by the exclusion of large segments of the population (most notably women and blacks, but also unpropertied white males) from participating in the drafting or ratifying of most of the text.
350. Some of these objections, and others as well, are elaborated in Ethan J. Leib, Why Supermajoritarianism Does Not Illuminate the Interpretive Debate Between Originalists and Non-originalists, 101 NW. U. L. REV. 1905 (2007).
351. McGinnis & Rappaport, supra note 199, at 386 (emphasis added).
352. Id. at 385 (emphasis added).
353. Id. (explaining that their argument "requires that judges interpret the document based only on its original meaning").
354. Id. at 391.
355. Id. at 391 n.37.
356. Barnett, supra note 4, at 617;
357. see also Farber, supra note 1, at 1102-03.
358. I am grateful to Larry Laudan for suggesting this example.
359. I criticize Hart's account in Berman, supra note 163.
360. Scalia, supra note 82, at 855.
361. The point of this more precise formulation is to recognize that a non-originalist judge of a more minimalist bent might announce a bottom-line conclusion or might craft implementing judicial doctrine, both without announcing an understanding of constitutional meaning. Cf. supra note 100 (discussing various carvings of meaning/doctrine distinction).
362. That is not to deny, of course, that the judge must have reasons for her interpretation and also an obligation to provide them publicly, in her opinion. But one can recognize considerations as reasons without having endorsed a more comprehensive set of general principles-a theory-from which those reasons follow.
363. I take no position on whether other works that are designed to persuade a general audience to reject Originalism are properly criticized for failing to offer a clear, easily digested alternative. For such a criticism, see Ryan, supra note 86, at 1627, criticizing recent books by Justice Breyer and by Cass Sunstein on precisely this ground. For recent ruminations on the Right's largely successful deployment of Originalism to mobilize conservative politics,
364. see generally Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitutionalism, 75 FORDHAM L. REV. 545 (2006), and Jamal Greene, Selling Originalism (Sept. 29, 2008) (unpublished manuscript), available at http://ssrn.com/abstract=1273640.
365. Tribe, supra note 56, at 71-72.
366. Id. at 72-73.
367. See, e.g., Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 TEX. L. REV. 1753 (1994).
368. See, e.g., Dorf, supra note 17, at 1787-96.
369. Farber, supra note 1, at 1103-04.
370. Whittington, supra note 15, at 608. Of course, I'm claiming that Whittington's characterization of McConnell is mistaken.
371. McConnell, supra note 69, at 1292.
372. See Scalia, supra note 82, at 862-63 ("[T]he central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned."). As Larry Solum has pointed out, this analysis betrays a double standard in suggesting that consensus on a single non-originalist approach is impossible without considering the possibility of achieving consensus on a single Originalist approach. Both are possible; neither is easy.
373. Lawrence B. Solum, Constitutional Possibilities, 83 IND. L.J. 307, 334-35 (2008);
374. see also Thomas B. Colby & Peter J. Smith, Living Originalism 1 (July 28, 2008) (unpublished manuscript), available at http://ssrn.com/abstract=1090282 (noting that proponents of Originalism assume "that 'originalism' represents a single, coherent constitutional theory, against which are arrayed the disparate non-originalist alternatives"). This double standard is a staple in the Originalist literature.
375. See, e.g., McGinnis & Rappaport, supra note 199, at 391 n.36 (defending Originalism in part because "judges of various ideologies cannot be expected to reach agreement on any alternative method").
376. See, e.g., BERGER, supra note 41, at 314-15 (noting that employment of nonoriginalist intepretations "reduces the Constitution to an empty shell into which each shifting judicial majority pours its own preferences");
377. BORK, supra note 20, at 155 ("No other method of constitutional adjudication [besides 'the approach of original understanding'] can confine courts to a defined sphere of authority . . . .");
378. SCALIA, supra note 38, at 46 ("The originalist, if he does not have all the answers, has many of them. . . . For the evolutionist, on the other hand, every question is an open question . . . .");
379. Rehnquist, supra note 51, at 698 ("Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution .... [j]udges [become]... a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers . . . .").
380. See, e.g.. RAKOVE, supra note 72, at 6-7, 340;
381. Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 632-33 (1987).
382. Macey, supra note 58, at 302, 304.
383. Id. at 302.
384. For a discussion of this view, see supra note 48.
385. To be sure, Originalists might be trying to create external enforcement by nominating or confirming as Justices only those persons who proclaim fidelity to strong originalism, or even by threatening to impeach Justices who depart from strong originalism. Until impeachment on such a basis becomes a genuine weapon, however, the point in text remains.
386. See supra note 127 and accompanying text.
387. A position of this sort is loosely suggested by arguments in Gary Lawson, A Farewell to Principles, 82 IOWA L. REV. 893, 897-903 (1997).
388. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,1000 (1992) (Scalia, J., concurring in part and dissenting in part).
389. Macey, supra note 58, at 304 (emphasizing indeterminacy of originalism and acknowledging that "there is something much worse about willful originalism than other sorts of outcome-oriented judging . . . because other sorts of outcome-oriented judging are more honest").
390. Graglia, supra note 23, at 1031.
391. See, e.g., BeVier, supra note 29, at 286-87 ("Integrity characterizes a judicial process based on originalism and its lack is one of the chief deficiencies of its alternatives. Many proponents of originalism bemoan the discrepancy between what the Court does-and what its nonoriginalist cheerleaders urge it to do-and what it says it does. The originalists urge upon the Court the simple virtue of candor.").
392. Several examples are provided in William P. Marshall, Conservatives and the Seven Sins of Judicial Activism, 73 U. COLO. L. REV. 1217, 1229-32 (2002).
393. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768-88 (2007) (Thomas, J., concurring); Grutter v. Bollinger, 539 U.S. 306, 346-49 (2003) (Scalia, J., concurring in part and dissenting in part);
394. id. at 349-78 (Thomas, J., concurring in part and dissenting in part); Gratz v. Bollinger, 539 U.S. 244, 281 (2003) (Thomas, J., concurring).
395. Grutter, 539 U.S. at 349 (Scalia, J., concurring in part and dissenting in part).
396. Id. at 378 (Thomas, J., concurring in part and dissenting in part);
397. Seattle Sch. Dist., 127 S. Ct. at 2782, 2787-88 (Thomas, J., concurring) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)).
398. See, e.g., ANDREW KULL, THE COLOR-BLIND CONSTITUTION 82 (1992) ("Bingham's preference-shared by the Thirty-ninth Congress and by most of our government authorities, most of the time since-was to retain the discretion to discriminate by race as appropriate.");
399. Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 430-31 (1997) (providing examples of Reconstruction Era federal statutes that made special provision for "colored" poor and for "colored" soldiers and sailors);
400. Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753, 789 (1985) (noting that "[t]he contemporaneous creation of the race-conscious Freedman's Bureau programs and the [F]ourteenth [A]mendment illuminates the amendment's meaning" as allowing race-conscious policies).
401. Robert M. Howard & Jeffrey A. Segal, An Original Look at Originalism, 36 LAW & SOC'Y REV. 113,133 (2002) (describing authors' conclusion after analyzing 895 cases over eight Supreme Court terms from 1979 through 1994).
402. BeVier, supra note 29, at 287 (quoting RICHARD A. POSNER, OVERCOMING LAW 245 (1995)).
403. See supra notes 99 and 200.
404. Kay, supra note 15, at 288.
405. Id. at 291-92.
406. For a similarly restrained defense of Originalism that appeared at just about the same time, see Earl M. Maltz, The Failure of Attacks on Constitutional Originalism, 4 CONST. COMMENT. 43 (1987).
407. For a non-originalist argument that emphasizes how a clear-eyed assessment of who our judges are, or are likely to be, should bear on the choice of constitutional theory, see Fallon, supra note 17, at 562-72.
408. Fred Schauer diagnosed this problem a decade ago. Because "nothing about originalism is obligatory as a matter of language or necessary to the very idea of having something that we call a constitution," Schauer explained, "it turns out that we are then engaged in a range of political, moral, social, and institutional design questions to which there is more than one answer." Schauer, supra note 115, at 345. Originalists, he continued, have therefore failed to heed the teachings of legal realism: [O]ne of the lessons of legal realism is a continuing skepticism about the tendency of legal actors, lawyers, judges, and legal scholars to disguise in the language of necessity what are in fact political, social, moral, economic, philosophical, or policy choices. Nowhere is this tendency more apparent than in the many discussions of originalism. This tendency is due, in part, to the fall of both
409. Id. at 345-46.
410. Cf. Posner, supra note 173, at 1368-69 (criticizing Bork's defense of Originalism for its "militance and dogmatism," and viewing his frequent use of religious imagery as symptom of desire "to place the issue outside the boundaries of rational debate").
411. Kesavan & Paulsen, supra note 8, at 1142.
412. Lawson, supra note 42, at 1250.
413. BORK, supra note 20, at 143.
414. Saikrishna B. Prakash, Unoriginalism's Law Without Meaning, 15 CONST. COMMENT. 529, 529-31 (1998).