Follow the Framers? Law Professors Debate Constitutional Originalism
Jokingly deemed by moderator Barry Cushman as the "thrilla in the pavilla," law professors John Harrison of Virginia and Robert Post of Yale Law School squared off Nov. 6 in Caplin Pavilion on the concept of constitutional originalism — should we adhere to a textual interpretation of the Constitution or should we understand it as a living, growing document supported by centuries of additional judicial precedent?
In his introduction to the debate, co-sponsored by the Federalist Society and the American Constitution Society, Cushman noted that many misconceive originalism as a new idea, but it actually dates back to the 19th century. He added that people often define it wrongly as a right-left political debate, but "birds do it, bees do it, even educated fleas do it. It happens all over the political spectrum," and in academia as well. "In my judgment that debate has gone on long enough, so we're going to settle it today," he joked.
An expert in constitutional law, Post said originalism is a "very respected, very common form of interpretation," also used in other such legal forms as wills. Post ageed with Cushman that originalism was in fact apolitical. "Originalism can … serve left interests and right interests," he said, noting that many in the left take an originalist stance on the 11th Amendment, while many in the right take a more functionalist approach. Furthermore, there are many issues that seem beyond the touch of originalism and acceptable to both sides, such as the modern interpretation of the equal protection clause. Both the left and right accept strict scrutiny for cases involving possible gender discrimination, Post said, but it's hard to find support for it in the Constitution.
For issues not clearly outlined in the text of the Constitution, there must be a presumption of why the Constitution can settle the problem, Post said, outlining three theories. First, "the Constitution is important to us because the Constitution is law." We look to the Constitution as the foundation of a government ruled by law, promoting the values of reliance, stability, and predictability. Furthermore, decisions that interpret laws add to the doctrine courts interpret in the future as well, until the Constitution recedes from view. Few first-year law students will find cases referring to the Constitution directly, Post pointed out — they instead refer to precedent. "That's what the decision is turning on — doctrinal-made decisions based on a test."
A second theory defines the Constitution as a form of political consent, as a contract between the people and the government they established. This approach relies more on a need to get the decision right each time rather than a desire to maintain consistent rule of law or strict adherence to the Constitution, because consent has validity only if the people continue to agree to it. On the other hand, if you work for an amendment, and it later goes before a court that misinterprets it, you would feel betrayed, Post said — "that's the core sense of originalism."
Post called his third model of why we look to the Constitution for answers the "authority of ethos" — the Constitution has authority over us because we're committed to a community that has that ethos. For example, much of equal protection jurisdiction relates to our current ethos. "We are asking a question of who we are now, and what does equality mean for us as a people … The question is, who we are fundamentally.
"We ask ourselves often, are we the sort of people that were the Framers?" He noted that when the constitutionality of having a chaplain lead prayer before each Nebraska legislative session was questioned in Marsh v. Chambers, Chief Justice Warren Burger asserted that Americans were the same people as those who passed the First Amendment and hired the chaplain for Congress a week later, while Justice William J. Brennan dissented. Post said Brennan's "substantive claim was, 'we're different from those people because we're secular.'" Post said the debate is fundamentally an argument about how we're different from the Framers made in meta terms by a conflict over forms of interpretation and what sort of interpretation to use.
Harrison joked that resolving the originalism question was "contrary to the interest of academics." He said the big question about originalism is, is the Constitution's text the authority of law in the nation? More than one theorist has argued that the law is "Constitution-plus," Harrison said. If law is what Americans actually do, then "you will not conclude that the Constitution is the law — it's something else.
"My only answer [to whether the Constitution is the law] is, 'yes it is,'" he said. Even deviations from the law are not enough to move us from the "official position of the American government." When presidents are elected, they swear to preserve, protect, and defend the Constitution, and you won't find many politicians willing to say the Constitution shouldn't be followed because it's outdated — instead they'll suggest an amendment. "The practice is so strongly in favor of the document, that the document is indeed the law," he said.
Harrison outlined three ways to interpret the document. First, through determining the intent of the people who wrote the document. If you inquire into intent, "then I think inevitably you're going to be an originalist." This may lead you into ridiculous questions, he added: "What would [the Framers] think about the Air Force?" He joked that they might view airplanes as simply manned artillery shells. "The arguments that are taken to refute originalism in this context, refute intentionalism," he said. If you follow intentionalism but not originalism, you would be put in the awkward position of trying to understand lawmakers' intentions throughout time.
If you interpret the Constitution more abstractly you might adhere to "purposevism" — applying general principles found in the Constitution to the issues we face today. "We can apply the broader principles — the purpose," he said. Within purposevism there is a debate about originalism, a concept used in recent decades "as an ancillary principle" in order to rein in courts that were increasingly viewed by the right as "getting out of control" by making laws rather than judging them. Originalists turned to history for concrete answers about the Constitution, and "concreteness is sought for reasons of judicial restraint," he said. "Originalism isn't a primary interpretive principle — it's a derivative interpretive principle."
"Unoriginalists" read the Constitution as if it has just been adopted, unlike legal formalists, who interpret the Constitution according to what the words meant at the time. But even if you read the Constitution on the assumption that it was just ratified, "you can't mistake that that document creates a government with quite limited powers," he said. "The list is in fact quite short.
"A lot has changed since 1789, but what hasn't changed a whole lot is the way the English language operates," Harrison said.
Post refuted Harrison's claim that the Constitution's text alone was the law. "It's not just the text, it has a social life and a social meaning outside the law," he said. He questioned why the Constitution should be confined to three forms of legal interpretation; constitutions also establish government and are usually a reflection of the political will of the people. He added that it was obvious the federal government goes above and beyond the commerce clause in regulating the economy, for example. "Are you prepared to say the federal government can't do all these things?" It's inconceivable to say because the text in 1789 meant a certain thing, various practices since must be abolished, he said.
Harrison disputed Post's claim that the only way systems of common law pursue values is through consistent adjudication. "Another way to pursue rule-of-law values is through a fixed text," he said. He also disagreed with Post's argument that ratification of a document like the Constitution was the only way to generate political consent or obligation. He admitted there were "contrary practices difficult to square with the written text," but it's also true that a central feature of the American ethos "is the unique status of that written document." We can see its special status whenever there are national political problems — people start debating the meaning of the Constitution. When Bill Clinton was impeached, "conversations were overwhelmingly about the document and about what the document meant," he said. Similarly, people studied the 12th Amendment during the 2000 election crisis.
Harrison speculated that if the Supreme Court started interpreting the Constitution as the Framers intended, then politicians might try what almost happened in the 1930s — pass an amendment broadening the powers of Congress over the economy. As it is, Harrison suggested, American courts have become activist in creating laws and doctrine alongside legislators. He noted the German constitutional court is a hybrid law-and-legislative body — and the justices have 12-year term limits. "I think that is a much better structure to do that job through."
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