Am I "imperiling" originalism? A reply to Joel Alicea

|The Volokh Conspiracy |

Joel Alicea is a smart young conservative with a bright future in the conservative legal movement. I have known him since he was a law student and admire his intelligence, his independent spirit, as well as his success as a public legal intellectual. All these traits are evident in his lengthy recent essay, Originalism and the Rule of the Dead, in National Affairs. There he advocates several important positions with which I am in complete agreement. First and foremost, he defends constitutional orginalism against the common legal academic trope that it consists of adherence to the "dead hand of the past." Or, as he puts it:

[D]espite its frequent invocation in the originalism debates, the dead-hand argument is not merely an argument against originalism. It is an argument against written law in general and against the Constitution in particular, at least insofar as we take it for granted that the Constitution—as it declares itself to be in Article VI—is a species of law. . . . Perhaps the most basic function of law is to constrain our decision-making; as Aquinas said, by law one is "induced to act or is restrained from acting." All law has this characteristic, but written law has a further characteristic: It is meant to continue in force beyond the moment of its creation. That is the primary reason for committing law to writing (emphasis added).

Although I have argued that committing law to writing performs several important evidentiary, cautionary, channeling and clarifying functions, there is no doubt that constraining present conduct is one reason for law, including written law. In particular, the Constitution was put in writing to constrain, not us, but the conduct of government as a whole, including legislatures in particular. (It is the laws made by legislatures that seek to constrain us.) Alicea then turns to the fact that law must function over time:

Implicit in these characteristics of written law is an unavoidable consequence: There will be at least some people whom the written law purports to bind even though they were not members of the polity when the law was enacted. This is true of any form of government, democratic or otherwise, since there are always some members of the polity leaving (through death or emigration) and others entering (through birth or immigration). The legislator who died yesterday rules the baby born today. It follows, then, that any theory of law that chafes at being bound by generations past is a theory that is incompatible with written law. To ask for written laws that only bind those living at the moment of enactment is to ask for a legislative session without end. The possibility of written law depends on accepting as binding the judgments of those who came before us.

I think this is quite correct too. Law governs over time. If it is binding, it is binding on those who were not a party to its creation. Or, as I have summarized "originalism," the meaning of the Constitution must remain the same until it's properly changed. Just as we cannot change the laws that are binding on us without going through the legislative process, neither may our servants in government change the Constitution that is binding on them without going through the amendment process.

With all this agreement, one might be surprised to find that, along with Yale law professor, Jack Balkin, I am the principal target of Alicea's essay. With Balkin, Alicea characterizes me as a "living constitutionalist" or dangerously close:

At its core, living constitutionalism is about forcing the Constitution to conform to the will of the living, whether "the living" is defined as society at large or a subgroup upon whom the living constitutionalist would confer power. Its fundamental orientation, then, is toward the present. That is why it is so hostile to originalism's demand that the present obey the past. We see that same orientation in Barnett's theory, with its rejection of the authority of the dead and its embrace of the sovereignty of each living individual. And just as the logic of living constitutionalism—like any theory that accepts the dead-hand argument—eventually leads to the cashiering of the Constitution altogether, Barnett's philosophical assumptions leave him but a step away from a libertarian version of living constitutionalism.

Well, if so, it is a mighty big step! I have consistently maintained that, if the Constitution is legitimate, then all government authorities who take an oath to adhere to "this constitution," the written one, are bound by the original meaning of the text. Period. Full stop. This stance seems a teensy bit at odds with those of living constitutionalists, who reject adherence to the original meaning of the text, which on their view is, at best, a "factor" or "modality" to be taken into consideration when interpreting the constitution.

True, I insist that a written constitution must be "legitimate" for the laws made pursuant to its authority to be binding on the individual, and that its legitimacy depends on what a constitution says. But I also insist that you must first identify what a constitution says before assessing whether what it says is sufficient to be legitimate, not the other way around. You don't ask what it would take to make a constitution legitimate and then "interpret" a text to mean that. The latter is the epitome of living constitutionalism. I then devoted the first part of my book, Restoring the Lost Constitution, to providing a theory of legitimacy that, I believe, the Constitution satisfies if it is followed. So, on my account, because the Constitution is legitimate, if judges and all other government servants of the people adhere to its original meaning, then the laws that are enacted under its authority are binding in conscience on the individual, regardless of whether that person has consented to be so governed.

True as well, I think we need a normative argument for why "we the living" are today bound by a Constitution we have inherited from the past. But so does Alicea. He too is offering a normative argument for why we today should adhere to a law that was written in the past, though I find his account to be a bit murky. Alicia's beef with me boils down to a disagreement over why our Constitution is legitimate. Here is what he says:

It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own. By our act of submission, we attain self-government. Society is, then, in the truest sense, what Burke described: "[A] partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born." We look upon our written laws, to cite Burke again, as "an entailed inheritance derived from our forefathers, and to be transmitted to our posterity—as an estate specially belonging to the people." This relationship between generations involves mutual duties and obligations that exist simply by virtue of being in society. There is no moment of decision, no ballot that one fills out to accept these responsibilities. Rather, they inhere in the nature of an ordered society because such societies require mutual trust and self-sacrifice. To suggest that each of us should be free to pursue only what we desire without regard for the obligations that society demands of us, on the grounds that we were never given a choice in the matter, is to suggest that society should cease to exist (his emphases).

Alicea is not being entirely clear here. Are "we" bound "by virtue of being in society" by the laws regardless of what they say? Were Jews bound "by virtue of being in society" to obediently board the trains and walk into the ovens? I know Joel Alicea does not believe this. Likewise, is a constitution legitimate regardless of how well it protects the rights of the sovereign people? According to such a view, everyone everywhere is bound by the constitution of their country no matter how oppressive it may be. Based on his essay, I cannot be sure what Alicea thinks of this, but I am quite confident that the founders did not share this view and neither did Edmund Burke.

The founders contended that they could permissibly "dissolve the political bands which . . . connected them with another, and . . . assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them." In particular, they dissolved the bands that bound them to their ancestors in England, and Edmund Burke supported them in so doing. Their issue was not that the British constitution was not in writing, which they fail to include in the "long train of abuses" that justified their revolution. Their problem was with the substance of what they were being ordered by parliament to do, and its lack of authority for so commanding them. And the relevance of what a constitution says affects the obligatory nature of the commands issued under its authority well short of violent revolution.

But if Alicea thinks what a constitution says figures into its legitimacy, then his approach is not fundamentally different than mine. My approach can be summarized in two sentences:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.-That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

As we know, Burke agreed with this too. Alicea needs to say much more about why we might be bound by the authority of the past regardless of the substance of what it may command, if that is what he believes. I am happy to post here any clarification of his position that he wishes to offer.

Perhaps predictably, what really seems to bother Alicea is "the presumption of liberty"-a rule of construction I have proposed in opposition to the "presumption of constitutionality" so ardently once favored by progressives. Of course, after this deferential presumption was finally adopted by the Supreme Court, it was almost immediately qualified with preferential treatment for some fundamental rights and suspect classes of persons, as described in Footnote Four of the 1938 case of U.S. v. Carolene Products. Like the post-New Deal justices who gave us Footnote Four, Alicea does not hold to complete Thayerian deference.

So, as near as I can tell from our past conversations, the difference between him and me boils down to exactly how "clear" must the Constitution be before judges may protect the sovereignty of the people from abuses by today's legislatures. To the extent he puts the burden on the individual rather than the legislature, at the end of the day, it is Alicea who privileges rule by today's majority (or minority) over the generally-worded protections provided in the past by the Founders and by the Republicans who gave us the Thirteenth, Fourteenth, and Fifteenth Amendments. So too if he maintains, as did Footnote Four, that only the "specific prohibitions" of the text warrant judicial scrutiny of legislatures, not its more general statements.

Although we do disagree, all this is way way too narrow a disagreement on which to base Alicea's heated charge that "Barnett's philosophical assumptions leave him but a step away from a libertarian version of living constitutionalism." Or that the "legacy" of originalism "is now imperiled by the rise of novel originalist theories that would, in time, lead legal conservatives into the very errors they have long opposed." Or that "by embracing the dead-hand argument," I "replace originalism's core philosophical assumptions with those of living constitutionalism." Or that to "the extent that legal conservatives adopt" my "views, they adopt premises antithetical to their own."

To the extent I understand Alicea's argument, I simply do not embrace the "dead hand" argument as he defines it, so I am not guilty of his indictment and originalism is safe. (Whew, that was a close one for originalism!) To reiterate, as I have stated innumerable times, the meaning of the Constitution must remain the same until it is properly changed.

So, while our theoretical foundations for this claim may differ, at most that difference results in Alicea being a bit more deferential to the will of today's legislators than I am. I won't say this makes Alicea a "living constitutionalist" who would ignore the parts of the Constitution that are not specific enough to meet with his approval, or that he is really an "unreconstructed Roosevelt New Dealer" at heart. But I will say that his more deferential approach surely seems less respectful of whole passages of the "lost" Constitution that we have inherited from the past than is mine.

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