A Unified Theory of Originalism and Living Constitutionalism

By Eric Segall

A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article:
Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.'
There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference), Barnett and Bernick have articulated a powerful guide for judges to use to decide whether laws violate the Constitution.  But like most originalist scholarship that does not include strong deference, what Barnett and Bernick are suggesting is indistinguishable from how most so-called living constitutionalists think judges should decide cases. They could have titled their piece "A Unified Theory of Judicial Review for Originalists and Living Constitutionalists," and they would not have had to change a single word.

The authors begin by discussing the evolution of originalist literature from the early pioneers in the 1970's such as Robert Bork and Raoul Berger to today's New Originalists. They faithfully trace that course of events, including the move by most originalists from emphasizing original intentions to searching for original meaning. But the more important and controversial development that forms the basis of their unified theory is the recognition by some originalists of the difference between constitutional interpretation and constitutional construction. Interpretation is "the activity of ascertaining the communicative [non-legal] content of the text," whereas construction is "the activity of giving that content legal effect—typically (but not exclusively) by developing implementing rules through which the text will be applied in particular contexts." Sometimes the content of the text is clear, such as the President must be 35, but where it is not, constitutional construction is often required for judges to apply imprecise text to modern problems.

Barnett admits that he was wrong when he used to say that constitutional construction must be “nonoriginalist,” because the text would run out before a solution could be reached. In this article, he and Bernick now contend that "construction not only can but must be originalist." The authors claim that "[g]ood-faith constitutional construction seeks to implement the Constitution faithfully by ascertaining and adhering to the original functions of the constitutional text—its 'spirit.'”

The bulk of the article is devoted to justifying this suggested method of constitutional interpretation and construction. First, of course, judges must follow the "letter" of the Constitution. Where the text is clear, it ought to be followed. Virtually everyone agrees with that rule. No matter how dumb the text is, such as the requirement that each state is entitled to two senators, judges should not override such precise instructions. I am confident that most if not all non-originalists agree with this idea for the following reasons persuasively set out by Barnett and Bernick.

Judges have a fiduciary relationship to the American people in the sense that they take an oath to uphold the Constitution that was ratified at the Founding along with its properly added Amendments. Thus, it is the judge's job to uphold that Constitution, both its letter and spirit, when they are called upon to resolve constitutional cases. If the letter of the Constitution is enough to resolve the controversy, judges should apply it. If, as is true in many cases (I would say almost all cases whereas Barnett and Bernick would say some), the letter of the Constitution isn't enough, then judges should look to its spirit and develop implementing rules consistent with the original purposes, functions, and structure of first the text at issue and if need be the Constitution as a whole.

Again, virtually all constitutional scholars agree with this framework. Other than retired-Judge Posner, who is an outlier, no one argues that judges should ignore what the Constitution says or its structure or the purposes animating the text and just make up a completely new Constitution to fit modern times.  The idea that there are legitimate scholars and judges who just want to make up new constitutional rules out of whole cloth without any justification in the text, history, or structure of the Constitution is a cleverly devised myth used by conservatives and libertarians for political purposes that has no basis in reality.

This is not to say, however, that, according to Barnett and Bernick, judges should not take into account modern conditions or factual mistakes made by the framers when judges are engaged in constitutional construction. The authors, like virtually all originalists who do not embrace a clear error rule of judicial review, concede that the wrong question is to ask "how the Framers would have applied the text to facts inconceivable to them—think violent video games." Moreover, even if the framers "actually conceived of a particular application, they may well have been in error. For example, we believe that eight Justices were wrong in how they applied the Privileges or Immunities Clause to sex discrimination in Bradwell v. Illinois, irrespective of whether the Framers of the Fourteenth Amendment believed that excluding women from the practice of law was reasonable."

In other words, good faith constitutional construction allows today's judges to reach specific conclusions 1) that the framers could not have reached because they did not anticipate the issue; or 2) different from the ones held by the framers if the framers' conclusions were based on incorrect facts, such as women are ill-suited to be lawyers. Any such conclusions by judges today, however, must be supported by a good faith examination of the Constitution's spirit and structure, assuming that simple textual interpretation cannot answer the question.

How should judges ascertain the Constitution's "spirit" when the text itself does not resolve the problem at issue? The answer is that because the Constitution "was the product of deliberate human design rather than uncoordinated human action . . .we can attempt to reverse engineer the design from close examination of its workings. But we can also seek out the explanations left behind by its designers. Even if these explanations were not published, they would still help us to understand the functions of each constituent part."

Quoting, of all people the person who first coined and then rejected the term "originalism," Professor Paul Brest, Barnett and Bernick say that even "Brest acknowledged that the 'general purposes' of constitutional provisions are ascertainable and that it is 'a perfectly sensible strategy of constitutional decisionmaking' to seek to adhere to them."  Barnett and Bernick approve of Brest's belief that a “moderate intentionalist applies a provision consistent with the adopters’ intent at a relatively high level of generality, consistent with what is sometimes called the purpose of the provision." The moderate intentionalist “'attempts to understand what the adopters’ purposes might plausibly have been, an aim far more readily achieved than a precise understanding of the adopters’ intentions.'”

So here we are. A judge engaged in good-faith constitutional construction should attempt to discover the general purposes of the Constitution, sometimes at a "relatively high" level of generality, and then apply those purposes or spirit to the case at hand. When doing so, we don't ask how the framers or ratifiers would have answered questions they could not have anticipated, like the constitutionality of bans on violent video games, nor are judges bound by the framers' specific expected applications of vague text to questions they did anticipate, like whether women have the right to be lawyers, if those conclusions were based on what judges today think are mistakes of fact.

It should now be obvious to the reader that there is a lot to commend in this "unified originalist theory" but that this approach also leaves judges enormous discretion to decide hard cases, and more importantly, is exactly how the Supreme Court has been deciding cases for centuries. In other words, non-originalists would agree with this approach, though they may call it something different, like pluralistic or living constitutionalism, because everyone agrees the general purposes of the Constitution should be applied faithfully by judges, but modern judges may have new facts available to them which justify judges not abiding by the specific applications of the principles adopted by the framers. Everyone, that is, except folks like Bork, Berger, and myself, who advocate(d) for an extremely limited and deferential system of judicial review.

Barnett and Bernick might argue that originalists and non-originalists might give different weight to historical factors versus non-historical ones, and thus their approach, which relies heavily on history, is distinguishable from an approach which takes history into account but gives it less weight. This objection, however, would not be well-founded, because the authors accept that many, if not most, litigated constitutional provisions will be defined by judges acting in good faith at a fairly high level of generality. The First Amendment stands for freedom of speech and religion, the Eighth bars cruel and unusual punishments, the Ninth Amendment/Due Process Clause/Privileges or Immunities Clause allow for the existence of unenumerated fundamental rights, etc. Consulting history may help us derive broad principles, but it will not tell us how much protection if any to give violent video games, whether gays and lesbians are similarly situated to straight couples when it comes to the right to marry, or which lethal injections are cruel and unusual (if any) and which are not. Applying the Constitution's "spirit" to those questions will require modern value judgments by judges (absent strongly deferential judicial review).

Barnett and Bernick apply their theory to both the Court's Second Amendment decision in District of Columbia v. Heller and the Court's New Deal cases expanding the commerce clause to cover local activities that when aggregated substantially affect interstate commerce. Not surprisingly given what we know about Barnette's priors, Heller's core holding that the Second Amendment protects an individual right to own guns separate from militia service represents good faith constitutional construction (or maybe even constitutional interpretation), though the part of Heller that lists various valid prohibitions on the who, what, and where of gun ownership does not, while the cases expanding the reach of the commerce clause are bad faith constructions. The article would have been much improved if the authors had provided examples of good faith construction that led to results inconsistent with their priors and bad faith construction that led to results consistent with their priors.

In any event, as applied to most hard constitutional law questions that reach the courts, this method of good faith constitutional construction is indistinguishable from how the Supreme Court acts and how most scholars urge the Court to act. Even in its most allegedly non-originalist decisions, such as Brown v. Board of Education, Griswold v. ConnecticutRoe v. Wade, and Obergefell v. Hodges, the Court tried in good faith to ground the opinions in the text and purposes animating the Constitution. The Brown Court believed that the equality principle contained in the Equal Protection Clause meant that separate schools could never be equal even if the framers of the Fourteenth Amendment were mistaken about that fact, a move allowed by Barnett and Bernick. In Griswold, Justice Douglas relied on various constitutional provisions to suggest a right to privacy (also relied on by the Roe Court) that instead of calling the "penumbras and emanations" of those provisions he could have called their "spirit." In Obergefell, Justice Kennedy went out of his way, as he did in all his gay rights opinions, to argue that bans on same-sex marriage or bans on consensual same-sex relations, violate the Constitution's promise of liberty, privacy, and equality that he derived from the history, text, and structure of the Constitution.

Whether or not Barnett and Bernick would agree with these specific conclusions, they would or at least should admit that judges engaged in good faith constitutional construction will inevitably disagree (in good faith) on how to apply the general purposes animating the imprecise language of litigated constitutional text to specific problems. Judges may also reasonably disagree on whether the facts that supported legal conclusions reached by the framers have changed enough to warrant different applications as time marches on.

There is one large unanswered question that Barnett and Bernick do not address which further suggests that their approach and so-called non-originalist approaches merge in most cases. It may well be the case that the "spirit" of most of the vague constitutional text that triggers litigation is that judges should update the applications of that text as times and values change. Professors Will Baude and Stephen Sachs have been arguing in a series of articles that it might be the case, for example, that the spirit of the Fourteenth Amendment was that judges would apply the equality and fundamental rights principles contained therein according to the governing mores of today, not the mores of 1868. To them, Brown and Obergefell might be justified on an originalist basis for that reason. But of course to most of the rest of the scholarly world, labeling that justification for those cases "originalist" does not distinguish them from non-originalist theories of interpretation. In other words, if the spirit of the imprecise text in the Constitution is largely non-originalist, then originalism and non-originalism merge. This is an important issue that perhaps should have received more attention in the article.

At the end of their argument, Barnett and Bernick sum up their approach:
First, judges are fiduciaries of the people to whom the Constitution entrusts a great deal of discretionary power, and that such wide discretion is the basis of corresponding fiduciary duties. Second, upon voluntarily taking their oath, judges become morally and legally bound to follow faithfully the instructions given them in the written Constitution. Third, to be faithful to 'this constitution,' judges should wield their discretionary power consistently with the 'supreme law of the land' —both letter and spirit—resolving cases through the spirit where the letter fails.
As I detailed in my book Originalism as Faith, virtually everyone agrees with these kinds of instructions, though they are more clearly articulated and fleshed out by Barnett and Bernick than most other scholars. Where judges and scholars disagree is over what are the purposes of the various imprecise constitutional provisions, how should those general purposes be applied to hard modern problems, and, most importantly, the degree of deference due political decision-makers outside the courts. But those differences are not distinctions between originalists and living constitutionalists, but between people with different values, politics, and personal preferences, which is the playing field on which, absent clear error judicial review, constitutional battles must inevitably be fought, hopefully in good faith.