"Yes, you are imperiling originalism:" A response to Professor Barnett

|The Volokh Conspiracy |

[In my Am I "imperiling" originalism? A reply to Joel Alicea, I offered to post any response he may have. What follows is his reply.]

I am grateful to Professor Barnett for offering me the opportunity to respond to his criticism of my recent essay in National Affairs, as well as for the very kind comments at the beginning of his post. Professor Barnett's criticism is characteristically thoughtful and probing, and I think it helps sharpen the points of agreement and disagreement between us.

We agree that the legitimacy of written law requires an answer to the question, "Why should we, the living, obey those long-since dead?" And we agree that there are circumstances under which one can rightly refuse to obey the dead. Barnett thinks that these commonalities render our approaches "not fundamentally different."

But both of these areas of agreement are mere starting points from which we take radically different paths. That we ask the same questions does not mean that we reach the same answers. I believe the obligation of the living to obey the dead inheres in a regime of written law, especially one based on notions of popular sovereignty. But, more fundamentally, I think it inheres in the nature of an ordered society, which is man's natural state and which comes with attendant obligations and duties to our forebears. Barnett misunderstands me, then, when he says that my purpose in the essay was to "defen[d] constitutional originalism against the common legal academic trope that it consists of adherence to the 'dead hand of the past.'" My purpose was not to defend originalism against the dead hand of the past; my purpose was to justify the dead hand of the past. Or, as the title of the essay terms it, the rule of the dead.

This is a foundational disagreement between us. Barnett's theory begins by rejecting the rule of the dead; he disclaims any right of the dead to bind the living. Rather, Barnett thinks that the living-quite apart from any duties to the dead-should obey the past only insofar as (1) the living affirmatively consent to such authority or (2) the decisions of the dead are necessary and proper.

This divergence in views is rooted in different conceptions of man and his relationship to society. In my view, man is, by nature, a social animal born with reciprocal duties and responsibilities that he does not affirmatively choose. I argue in my essay that the best and most traditional accounts of written law and originalism assume these premises. Barnett, by contrast, sees each individual as his own sovereign, a mini-society unto himself. Obligations must be consented to or, at least, not be an affront to one's sovereignty.

These disagreements have significant consequences for our respective theories of originalism. Barnett's presumption of unconstitutionality is the most obvious example of that divergence. As I say in the essay, "Barnett would grant power to the judiciary that goes beyond the original meaning of the Constitution (the past) in the name of the libertarian individualism that sustains his theory (the present)." The implications of a presumption of unconstitutionality are quite far-reaching, and it will generate different outcomes in many cases.

Barnett's response tries to downplay the differences between us, and I happily acknowledge that "much of his scholarship . . . would command the agreement of originalists old and new." But Barnett's deviations from traditional originalist views on a host of constitutional provisions and doctrines are well-known, and they are no accident: They are the logical playing-out of Barnett's premises. My essay does not go so far as to say that Barnett cannot maintain his premises and his commitment to originalism. But I do believe that, insofar as legal conservatives adopt Barnett's theory, they "adopt premises antithetical to their own" and remain only a step away from living constitutionalism.

Barnett notes that my essay does not outline the limits of our duty to obey the dead. He asks, "Are 'we' bound 'by virtue of being in society' by the laws regardless of what they say?" My focus was not on that question, but on whether the dead have authority over the living. I certainly agree that there are circumstances under which we have the right-even the obligation-to disobey a law, the Civil Rights Movement being a paradigmatic example. A standard for assessing legal obligation exists apart from positive law, and Barnett is correct in saying that my account of written law and originalism would be incomplete without addressing the way in which that standard fits into the argument of my essay. But none of that affects the truth of my thesis: Barnett starts from radically different philosophical premises than those that have traditionally grounded originalism and those differences have significant implications.

Barnett concludes by arguing that my "more deferential approach surely seems less respectful of whole passages of the 'lost' Constitution that we have inherited from the past" than his own. In a previous National Affairs essay, "Real Judicial Restraint," I argued against Thayerian judicial restraint on the one hand and Barnett's presumption of unconstitutionality on the other. I made the case for a conception of judicial restraint that best accords with originalism and popular sovereignty. Rather than repeat those points here, I leave it to readers to reach their own judgments as to whether Barnett's view or mine is more respectful of the Constitution.

Barnett, with admirable humility, shrugs off any suggestion that his theory could imperil originalism. In this, he understates his influence within the conservative legal movement, where his theory has gained a strong and growing following, particularly among younger conservatives. This is due, no doubt, to his incisive scholarship, his devotion to the next generation of legal conservatives (of which I am a beneficiary), and his compelling way of articulating complex arguments. Through this impressive combination, Barnett has forced the conservative legal movement to decide whether it will abandon its longstanding commitment to an intergenerational partnership of the living and the dead. That debate has now begun, and its outcome will determine originalism's future.