Law professors and other scholars write new articles about Originalism almost every day of the week. The sheer volume of this content makes it quite difficult to separate the wheat from the chaff. Every now and then, however, an article comes out that makes a seriously new and important contribution to the subject matter. Professor Stephen Griffin's "Optimistic Originalism," is one of those articles.
One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."
Thoughtful and usually careful scholars Michael McConnell and Steve Calabresi are two among many whose historical work Griffin politely but convincingly demonstrates is more optimistic than accurate. McConnell wrote the seminal scholarly article arguing that Originalism and Brown v. Board of Education could go hand in hand. There have been many rebuttals to that claim by other distinguished scholars and Griffin collects those, adds his own original critique to that work, and shows persuasively that one must, in fact, pick sides--one can be a public meaning Originalist, or one can be a supporter of Brown, but one can't be both.
Griffin points to a host of other problems with how public meaning Originalists have looked at historical evidence to support their claims, and argues the following:
From their [public meaning Originalists] point of view, everyone who participated in the debates in Congress, indeed possibly everyone who lived in the nineteenth century, could have misunderstood their own law. I suggest we should be deeply uneasy about rendering irrelevant so much of the actual deliberation that occurred throughout the Civil War and Reconstruction. We should be uncomfortable with denying the reality of the War, so to speak. We should think about the implications of giving ourselves permission to bypass the way history actually happened. Doing this arguably denies us the explanatory and normative purchase that comes with appreciating the genuine difficulty of the constitutional questions that troubled nineteenth-century America. In approaching legal meaning in this way, public meaning originalism makes the fraught process of constitutional change disappear.Griffin argues throughout the article that public meaning Originalists focus too much on text and not enough on historical context to support their arguments. The practitioners of public meaning Originalism fail to "consult the self understanding of the participants who enacted the amendments, " and thus "take on board an implausible set of meanings."
The reason that public meaning Originalists largely ignore the subjective understandings of the people living in the 19th century is that numerous academic Originalists dropped original intent originalism after a series of devastating critiques launched at it by scholars like Jefferson Powell and Paul Brest. But by minimizing and at times ignoring what people at the time believed the Fourteenth Amendment meant, Griffin persuasively argues public meaning Originalists simply get the history and context of that Amendment wrong. As Griffin says:
With respect to the extraordinarily fraught history of slavery and race in the United States, public meaning originalism tends to trade on our reluctance to grapple with the views of nineteenth century Americans who held views which can be described today as unfortunate (or worse). I will argue nonetheless that the costs of ignoring the self-understanding of nineteenth-century historical actors are far too high. They necessarily involve an equally questionable erasure of context – especially the knowledge of prior law from which we can still benefit.This problem shows itself most obviously when public meaning Originalists deal with issues of gender equality. On many occasions on this blog, as well as in my book Originalism as Faith, I have criticized the work of scholars such as Lawrence Solum, Ilya Somin, and Ilan Wurman who claim the reason one can be a public meaning Originalist and still adopt a modern understanding of gender equality is that people living in the 19th century had their facts wrong. They thought women didn't have the skills to be lawyers or manage their own property. I have responded in two ways: first, even if the people at the time had their facts wrong, gender inequality was the original public meaning of the 14th Amendment; and 2) the sexist views of the people living at the time were based more in values than facts.
Griffin makes the same arguments but with more incisive and persuasive historical evidence and reaches the only reasonable conclusion:
it seems plain that the subordinate status of women was the product of an intricate web of value judgments rooted in a vision of society. This normative vision was in turn connected and supported by how the legal system treated women, a system the male proponents of the Fourteenth Amendment did not design it to revise.Griffin's article is much, much more than just a takedown of public meaning Originalism. There are interesting (and sad) accounts of Reconstruction and why it failed, examinations of constitutional change and how accurate accounts of history are necessary to a full understanding of that difficult subject, and substantive discussions of important constitutional law questions. The reader can decide for herself which of these jewels she enjoys the most.
For me, Griffin's account of the 19th century and its relationship to constitutional interpretation is most important for debunking the claims by many public meaning Originalists that they can optimistically (and inaccurately) use incomplete history to support their modern value judgments. The sad reality is that we have to either reject the original public meaning of the 14th Amendment and live in today's world, or accept that meaning and live by the often horrific values of a time when people of color and women were second-class citizens at best. There simply is no middle ground.
10 comments:
This one is for you Shag. They are still fighting it out w/o quite your charm.
"The sad reality is that we have to either reject the original public meaning of the 14th Amendment and live in today's world, or accept that meaning and live by the often horrific values of a time when people of color and women were second-class citizens at best."
I would take out the word "sad."
"or accept that meaning and live by the often horrific values of a time when people of color and women were second-class citizens at best. There simply is no middle ground."
Really? No middle ground? In addition to keeping wrongly decided precedents in place (even if one believes them to be wrongly decided), there are actually two additional options that one can embrace in regards to this:
1. Push for new US constitutional amendments in regards to these specific issues. For instance, a new US constitutional amendment to formally constitutionalize the result in Loving v. Virginia should easily pass right now considering that no US states actually have any anti-miscegenation laws right now. Similarly, a new US constitutional amendment to endorse the result in Brown v. Board of Education right now would *probably* pass just as long as it was clear that it didn't endorse busing--which generated a lot of resentment in the 1970s and still might today. Likewise, the Equal Rights Amendment might have recently been ratified by the necessary number of US states if one rejects the idea of Congressional US constitutional amendment ratification deadlines as well as the idea of states actually being able to take back/undo their ratifications of US constitutional amendments.
2. Push for the creation and adoption of a new US Constitution. This can theoretically be done by as little as the majority of the US population (there's no reason as to why we *must* follow the requirement that two-thirds of all US states should embrace the idea of a new US Constitutional Convention beforehand due to the fact that, according to constitutional theory, the people's primary power to create a constitution cannot be limited--including by their existing constitution) and could theoretically change any aspect of the existing US Constitution if the majority of the US population will desire it--including the explicitly protected part of the US Constitution that provides for equal representation in the US Senate to all US states.
Indeed, has *anyone* ever actually considered that if our current constitution is sub-optimal and passing new US constitutional amendments is simply too hard, then maybe we should seriously consider simply writing a new US Constitution? I mean, plenty of other countries have previously engaged in constitutional revision and the results haven't always been bad, now have they?
In regards to the "originalism can produce bad results" argument, frankly, I view this as a rather worthless argument considering that some--if not many or even most--living constitutionalists might likewise be willing to tolerate bad results in the event that we would have hypothetically had a different US Constitution--for instance, supporting a different result in Brown v. Board of Education and Loving v. Virginia in a hypothetical scenario where the original US Constitution would have explicitly allowed US states to segregate their schools by race and to have anti-miscegenation laws--including whatever punishment for these laws that they desired, including the death penalty.
"For instance, a new US constitutional amendment to formally constitutionalize the result in Loving v. Virginia"
The Constitution would have to be amended a whole lot if we need a separate amendment for something as well accepted as interracial marriage. The Constitution was set up with open-ended terms to provide room for flexibility.
This is an irony to originalism talk on some basic level. The Framers understood their text would years later be applied in ways they would often only vaguely expect (see, e.g., John Marshall in McCulloch v. Maryland).
The talk of a whole new Constitution is a bit of a task though when we as a society can handle it, it would be appropriate to change various things. But, the end result will still have provisions that will be open ended and terms like an understanding that women lawyers is what equal protection warrants unlike in 1872 will develop over time in a variety of ways as the facts on the grounds developed.
All interpretative approaches are going have issues. The problem ultimately is that originalism as a whole even on that level is a lousy approach overall as compared to others, including based on the logic of its proponents.
The Constitution will always be imperfect and hoping that allowing originalism will advance constitutional change to make things better isn't much of a counter either. In 1868, the provision in question advanced the ball but interracial marriage was not something the people were ready to accept especially as things developed by that point. Using originalism as compared to a range of other constitutional interpretative methods wouldn't have changed that.
For what it's worth, I don't necessarily think that even "old originalists" would have actually objected to flexibility in constitutional interpretation if they believed that a part of the original intent in regards to various US constitutional provisions was to allow such flexibility. What they objected to was that they could not find evidence of the draftsmen of particular US constitutional provisions actually believing in such flexibility. For instance, in regards to the Privileges or Immunities Clause of the 14th Amendment, I don't seem to recall any of the supporters of the 14th Amendment ever explicitly saying that something that wasn't a Privilege or Immunity in 1866 or 1868 (such as, say, interracial marriage) could eventually become a Privilege or Immunity even without any new US constitutional amendments--or, alternatively, that something that was a Privilege or Immunity in 1866 or 1868 could eventually stop being a Privilege or Immunity even without any new US constitutional amendments. Indeed, this is why Raoul Berger was so critical of John Hart Ely's "open-ended invitation" theory in regards to the 14th Amendment; basically, Raoul Berger couldn't actually find any evidence in favor of this "open-ended invitation" theory in the history of the 14th Amendment.
So, yeah, I don't think that originalists--even "old originalists"--would actually object to an evolving application and interpretation of US constitutional provisions (whether of the current US Constitution or of some new US Constitution that we will subsequently adopt) if they could actually conclude that there was indeed an original meta-intent to have such an evolving application and interpretation. The issue for them often appears to be that they cannot actually find evidence of an original meta-intent to this effect. If a new US Constitution would have been quite explicit that it need *not* necessarily be interpreted according to either original intent or original meaning, though, then originalists might indeed view this as being sufficient evidence of an open-ended invitation for judges to alter the application and interpretation of the provisions of this new US Constitution over time.
By the way, if the law and the US Constitution should both evolve in regards to changed circumstances, why not extend that logic to the question of whether or not one US constitutional provision nullifies another US constitutional provision? So, as per my example above, if, purely hypothetically (hypothetical scenarios don't actually have to be realistic; if they did, Judith Jarvis Thomson's Violinist scenario in regards to abortion could simply be outright dismissed by anti-abortion people), the original US Constitution would have explicitly stated that US states are allowed to segregate their schools by race and to have anti-miscegenation laws (with whatever penalties for violating these laws that they desire, including years in jail and even the death penalty), and if all of the subsequent amendments to the US Constitution would have had the exact same text that they had in real life, should the 14th Amendment's vague text be read as implicitly nullifying this hypothetical part of the original US Constitution even though it wasn't actually intended to do this? After all, one could argue that the relevant facts have changed since 1868 in regards to this and that segregated schools and anti-miscegenation laws might have seemed reasonable to people in 1868 in a way that they don't a century or so later. (For instance, there might have been a belief among some people that there is a legitimate state interest in banning miscegenation back in 1868--similar to how some people today might believe that there is a legitimate state interest in banning incest. However, what if in the century after 1868 the science that was used to reach and justify this conclusion has been debunked or at least seriously discredited? Then what?) If the law and the US Constitution should evolve with the times as well as with changing facts and changing information, why exactly shouldn't it evolve in this specific case/scenario as well? Indeed, if the draftsmen of a particular US constitutional amendment believed that this amendment was compatible with a hypothetical earlier US constitutional provision but the reason that they believed that these two US constitutional provisions was based on facts or information that have subsequently been debunked, challenged, and/or discredited, then I don't see why exactly courts later on *must* stick by the conclusion of these draftsmen that these two US constitutional provisions are compatible with each other.
I don't know exactly what "originalists" will think (Scalia once challenged that sex would something the EPC would cover as an originalist matter) but the flexibility and variability there is a basic theme of our host here. See, e.g., his book.
if the law and the US Constitution should both evolve in regards to changed circumstances, why not extend that logic to the question of whether or not one US constitutional provision nullifies another US constitutional provision?
The principle is that when the text provides flexibility, we can and should apply it per the lessons of history. So, "due process of law" developed over time, even if the processes in place in 2020 might surprise those in 1791 or 1868. What is "reasonable" under the Fourth Amendment depends in part on current recognized norms of reasonableness. Just what is "necessary and proper" changes over time. etc. etc.
But, if something is explicitly hardwired, such as two senators or some hypo where there is an explicit acceptance of a miscegenation ban, the fact we might find it 'bad' is besides the point. It does not allow us to "nullify" something just because time has shown it is based bad reasoning. An amendment is necessary.
OTOH, miscegenation is not expressly authorized. There is a general test of equal protection and so forth. Loving v. Virginia applied that based on how it developed over time. There is no need for a new amendment. The change of the specific range of the equal protection provision is in fact as expected.
"But, if something is explicitly hardwired, such as two senators or some hypo where there is an explicit acceptance of a miscegenation ban, the fact we might find it 'bad' is besides the point. It does not allow us to "nullify" something just because time has shown it is based bad reasoning. An amendment is necessary."
The question in my hypothetical scenario, though, is this: Why require a new US constitutional amendment for this if the 14th Amendment can already be perceived as nullifying this earlier hypothetical pro-miscegenation part of the original US Constitution--albeit implicitly rather than explicitly?
I agree that we should not get rid of hard-wired parts of the US Constitution simply because we don't like them. Rather, my point here was to ask why we should insist on requiring new US constitutional amendments to get rid of these bad hard-wired parts if we believe that some already existing US constitutional amendment (in this case, the 14th Amendment) can already be interpreted as getting rid of these bad hard-wired parts? After all, re-interpreting an existing US constitutional amendment is astronomically easier than passing a new US constitutional amendment since the former only requires the consent of five SCOTUS Justices whereas the latter requires the consent of two-thirds of the US Congress and three-fourths of all US state legislatures!
I suppose that this might be another hypothetical scenario to help illustrate my point: Let's say that, purely hypothetically, the original US Constitution will explicitly state that US states are allowed to restrict one's choice of marital partner based on one's sex. (Essentially to prohibit same-sex marriage.) Then, let's say that some subsequent US constitutional amendment would have prohibited any legal distinctions based on sex unless these distinctions actually served a compelling state interest. In this scenario, the draftsmen of this latter amendment might have believed that this amendment left this earlier hypothetical part of the original US Constitution unaffected because they believed--based on the factual assumptions and knowledge of their day--that US states had a compelling state interest in limiting marriage to one man and one woman. However, what if one's knowledge in regards to this (for instance, in regards to the nature of homosexuality and the success of same-sex couples parenting) would have subsequently changed since then and nowadays it would have no longer seemed likely to us that US states actually have a compelling state interest in limiting marriage to one man and one woman?
In such a scenario, we would have a hypothetical original US constitutional provision that would have allowed US states to ban same-sex marriage. We would have also had a hypothetical subsequent US constitutional amendment that would have created a test that would have only allowed legal distinctions based on sex when these distinctions actually served a compelling state interest. However, something that might have seemed like a compelling state interest back when this amendment was passed (in this case, prohibiting same-sex couples from marrying) might no longer seem that way today due to the change in facts, knowledge, and information that has occurred since then.
Post a Comment