Yesterday I learned that some Republican state legislators in North Carolina have sponsored a bill to declare an established religion—or at least, to declare that the federal Constitution wouldn’t prohibit such a declaration. In doing so, of course, they disregard a mainstream of constitutional jurisprudence on the issue that goes back into the ninteenth century but was really firmly established in the middle of the twentieth century. I’m not here to talk about that question, but I found it particularly interesting in light of the conversation I’ve been having by email over the last few weeks with Dr. Sean Wilson, an assistant professor of law at Wright State University, about his new book The Flexible Constitution. Sean emailed me after reading my piece on originalism here and suggested we review his book. The full interview is available to download as a PDF. Here are some extracts from what he said:
The book does two things. First, it thoroughly investigates originalism as a philosophy of law and comes to a stark conclusion. The belief system isn’t merely a matter of one’s “values,” as if it is just a conservative way to espouse “the Constitution.” Rather, I show that originalism is a deeply flawed philosophical orientation. . . . One of the most important things the book attempts to do is clarify when it is appropriate to use history to read the Constitution . . . . [W]hat must be understood is that, as far as jurisprudence goes, people do not silently pass along their history to future generations when they enact law; they merely pass along language . . . . [T]he framing generation enacted a bunch of simple sentences using plain language. This means, in many respects, they have handed American judges a blank check.
But that doesn’t mean that judging is licentious and “free.” To the contrary, to wield the power of an American judge properly, the jurist must make what Wittgenstein once described as an “aesthetical” (or artisan) judgment . . . . [I]magine a choice made by one who had developed a rather keen “eye” for the subject. Someone who became, in essence, an expert for what the court should do with [e.g.] gay marriage. This person would know all that history, philosophy, science, anthropology, and culture had to offer this subject in their time. And imagine that this person properly absorbed all of that. The arguments, premises, reason and insight he or she would give you would be the best that culture had, no matter which way the ruling went. So that even if you lost, it would only be a reasonable disagreement. In such a situation, the judge would have behaved as a good connoisseur, which is all that the judge can do.
To me, that doesn’t get us very far. It would be useful to distinguish between reasonable and unreasonable disagreements over judicial decisions, but the narrower the distinction of reasonableness becomes, the closer it gets to the unanswered question of what exactly constitutes a good judicial decision. Wilson’s comments remind us how shaky the ground gets for legal philosophers trying to avoid originalist-style interpretative methods. He’s pretty much clawing at thin air. But then, so is Scott Douglas Gerber of Ohio Northern University in this debate from a couple of weeks ago. Gerber suggests a broad “liberal originalism” that should set the boundaries of reasonable decisions:*
Gordon Wood’s response is perhaps the only item here that deserves real thought, but again, its effect is mainly to underline the enormous challenge of constitutional interpretation in general. Wood is surely right that history just can’t be used in the way lawyers and judges (and often politicians and journalists) want to use it. But his solution, politely and diffidently offered, is a quasi-mythological law office history, a “necessary fiction,” that he calls “a legitimate pursuit” even while he dismisses its value as historiography (“it’s not really history that they’re using”). I’d say that, too, is basically ducking the issue. On what basis should we argue about this mythological history, once it has been removed from the sphere of actual history?
Such arguments are not Wood’s job or ours as historians, but they are our job as citizens. A constitution is a very strange beast. But as we see proved every day in the news, it’s not like a dragon or a unicorn: it’s right here with us and we have to deal with it somehow.
* In relation to the North Carolina issue, there’s a notable exchange in this video where Prof. Gerber says at 16.05 that “it is difficult to imagine a principle to which the founders were more philosophically committed than the separation of church and state.” Prof. Wood rightly calls this out at 36.44: “I just think that’s not true. They were totally confused about separation of church and state, and in fact, they didn’t believe in it.”
Thanks for this very engaging post. I have seen a bunch of links to the Wood talk and really need to find the time to watch it. My own take on originalism is that it’s fine as it goes. If one can show that everyone understood a particular term of art to have a particular meaning at the time, it should mean what it meant at that time rather than just importing whatever contemporary meaning the words might have ala Wilson. There are just many cases, however, where we can’t discern the original intent (a historical problem) or even where we can apply it (e.g. cases beyond the contemplation of those who had a part in creating and ratifying the Constiution). Where Originalism doesn’t help us, what side do we err on? Upholding a validly created statute because we live in a Democracy? Individial liberty because the government created in 1789 was supposed to be one empowered for limited purposes (as opposed to state governments)? Personally I find the Originalism debate highly sterile because a true originalist position can’t be determined and applied in every case. Where it can I’d say it should rule, but for the many it can’t, the really interesting question is “what do we do now”?
Questions regarding originalist readings of various terms or clauses of the Constitution miss the larger picture. Inherent in all originalist arguments is the dubitable proposition that the Founders intended us to read and treat the document that way. That is not to say that there is no value in linguistic originalism pertaining to the Constitution, but there is no value in such without a fully historicized understanding of the context. On this I think I agree with Wood. He’s much too polite but in effect he is arguing that it is highly presumptuous on the part of jurists to think they can divine the original intent of the founders from the text alone and without a broader understanding of the period.* But cannot jurists understand the period the period as well as historians, you might ask. Again, I am with Wood. After all, what percentage of history books by lawyers (as opposed to genuine legal historians) that you have read would you say were well done in both their contextualization and analysis? If your experience is anything like mine, it is a VERY small number. Without historical context, originalism becomes a juridical sham or, at worst, a partisan tool.
*It’s kind of like the little kid who indiscriminately bangs on the piano. He THINKS he’s playing it and perhaps, technically, he IS playing it, but he’s not really PLAYING it. 😉
We agree on this, Michael, but I just want to add a small demurral: the point really isn’t any special difference between “historians” and “lawyers” as individuals or as scholars. It’s perfectly possible to be both at the same time. I don’t think we’re talking exactly about disciplinary knowledge or structures here. Rather, when Wood says it’s impossible for lawyers to do history he means it’s impossible for them to do history *as jurisprudence*. Cases in law require fixed decisions (it either is or isn’t constitutional; you either vote with the majority or the minority) in a way that history just doesn’t allow.
So, none of us are simply lawyer-bashing here (fun as that may be). It doesn’t matter at all if a lawyer has ever written a good work of history. Alec is spot-on about the really difficult and important question: how then should we judge law? For my money, that’s a political and an ethical question (but then, you know, writing history is political and ethical too).
Tom, I understand what you’re saying. (My lawyer bashing was, admittedly, just for fun.) However, let me push back a bit. Perhaps individual “cases” require “fixed decisions,” but the understanding is that later decisions can establish new precedent. So, how “fixed” are they really? And how, then, is that fundamentally different from the nature of our own analyses and interpretations (i.e., “decisions”) as historians in relation to the historiography? I think you may be attributing a false (or at least exaggerated) sense of permanency to individual legal “decisions” (at least in the comment above).
*Obviously, legal decisions impact people’s lives in a way that historical interpretations do not (at least not on a short-term, micro-level) and so they are qualitatively different in that sense, but I am referring to the nature of legal decisions and historical arguments/analyses/interpretations.
Let me offer a small example that will demonstrate some value of originalism, offered by my federal courts professor many years ago. The Constitution provides for the Supreme Court to exercise original jurisdiction over “to all cases affecting ambassadors, other public ministers and consuls”. Does this mean that lawsuits against Cabinet Secretaries should be included? After all they are “ministers” in the American system if by ministers we mean the term the way the English do.
Originalism gives us an easy answer: no. It was understood to mean a form of diplomat by all concerned. Debates over the Constitution shows there was a uniformity of understanding on this matter.
The fact that in some cases we can’t derive or apply originalism does not mean it lacks any value as a means of interpretation. Because it can’t solve all cases doesn’t mean it can’t be useful to solve any. If we give up completely on the original understanding of the Constitution we lose one of the major anchors we have on judicial discretion.
At the end of the day, if the Constitution’s meaning is indeterminate we’d be better off under a British approach, i.e. let Congress decide. At least its elected.
That would be a truly British approach in which, whatever law the Congress enacts, its constitutionality is inherent in its passage. Below Tom suggests the solution is “popular sovereignty.” I think you’re both right on that. For a radical and wholly unrealistic solution, we could look at the original Pennsylvania state constitution in which they allowed for review but by a Council of Censors popularly elected every seven years for the express purpose of determining the constitutionality of all laws enacted by the Assembly in the past seven years. In the current political climate, could you imagine how hard-fought election campaigns for that would be?
I have not read Wilson’s book, but I can tell from just the clip you have here that he is not “clawing at thin air.” I can imagine others saying, well, that just goes to show you “how shaky the ground gets” for historians.
It seems to me that what Wilson is doing is precisely shaking up, or at least widening, the grounds upon which what we might acknowledge to be legitimate judgment would be, or just plain is, based. We might think of the project, again, it seems to me, as roughly parallel in some resects to the work of Jay Fliegelman or Eric Slauter, or perhaps law and literature scholarship like that of Bradin Cormack- the implication being that writing, reading, using, and making judgments about law and text, even and we might say especially authoritative, fundamental text, is an activity that takes place in time, and our histories, our politics, and our jurisprudence will benefit from being aware of the fact that judgment rests on the acknowledged and unacknowledged influence and use of a plurality of contexts. Judgments will be better if the judging citizens that make them cultivate this at once deeply historical and philosophically satisfactory sensibility. Meanings are not fixed, they are “flexible,” and have everything to do with the wider world of activities in which the language of law, politics, and constitutionalism, among other things, gets used and reworked- this has to do with a form of life. I think this is very Wittgensteinian (it is also in some sense Jeffersonian). But, funnily enough, and in its own way, it is also very ancient and customary.
A historian will not surrender the integrity of his or her discipline if they acknowledge themselves to be acting in dialogues, we could say histories, that are civic and jurisprudential- they, like their jurist-friend, are with different commitments trying to represent processes and practices of constitutional culture(s), and in doing so they might be exploring the boundaries of what counts as history, theory, and culture. This can be legitimately understood as constitutionalism, and the making of constitutional meaning in time could be legitimately construed to include such activity in and out of history departments, and in and out of law schools and universities.
Whether Wilson would agree with this or not I cannot say, but he seems to be plowing in similar fields as a host of other scholars from different disciplines- relevant literature here would be Wittgenstein, Arendt, James Tully, Jennifer Nedelsky, Bonnie Honig, Shannon Stimson, Hannah Pitkin, Sheldon Wolin, Alexandre Lefebvre, Saul Cornell, Al Brophy, Abner Greene, and others.
Matthew, I agree, jurisprudence takes place in time, and meanings are not fixed! Don’t we all know that already? But when I asked Prof. Wilson to say what good judgements are based on, he wrote about a wise expert and connoisseur. That’s meaningless to me. Who can tell who the expert is, and on what basis? University degrees? I’m with Alec here: one positive answer to this situation is democracy, popular sovereignty.
Somehow I was under the impression that some years back I wrote a whole book on the subject of how historians might analytically approach the subject of originalism. Its first chapter was even called, “The Perils of Originalism.” But maybe I was mistaken about its contents, and it is actually about something else.
Yes, Original Meanings certainly deserves an honourable mention! There’s obviously no last word, but for me, that book still determines the main outlines of the debate. Just to give a sense of how that debate continues from the book, here are the closing paragraphs from Eric Foner’s LRB review:
“The point of dwelling on the founders’ actions regarding slavery is not to belabour them for being creatures of their time, but to underscore the dangers of an originalism that simply re-enacts the principles and prejudices of the late 18th century. In a brief ‘Coda’ that seeks to bring his historical findings to bear on current debates about jurisprudence, Rakove recognises as much. It would be inadmissible, he writes, for ‘morally sustainable claims of equality’ to be ‘held captive … to the partial and incomplete understandings of 1789’. Yet as soon as he offers this apparent endorsement of a ‘living Constitution’, Rakove draws back, insisting that while the Constitution may be brought up to date, its language ‘cannot be infinitely malleable’.
“This is an odd ending for a book that has demonstrated that the search for original intent must ultimately be inconclusive. Surely, the alternative to the notion of a document with a single fixed meaning is not utter indeterminacy but a view of the Constitution as a set of enduring principles to which only the actions of subsequent generations can give substantive meaning. The drafting and ratification of the Constitution, in other words, was the beginning, not the end, of the debate about the purposes of government, the rights of citizens and the meaning of freedom.”
I agree completely on the subject of democratic constitutionalism, but that was not really the point I was trying to make. WIlson is presuming that we aren’t getting rid of judges anytime soon, and as long as we are not, we need to do some thinking about what is involved in judging. A “connoisseur” of the the malleability of constitutional language cannot be an originalist, or limit themselves to a stable liberal, continuous “living” constitutionalism, either, I would think. It seems to me Wilson is trying to do some serious thinking about what judging is, and that seems to me to be thought worth taking more seriously. This matters because even if we had a much more democratic jurisprudence and constitutionalism, the problem and the burden of judging will not be going away- in fact it will become more important because it will be shared. What counts as the criteria for judgment and who gets to be acknowledged as legitimately participating in speaking and judging are not problems that will fruitfully be confronted by slogans about popular sovereignty. Sovereignty is still sovereignty, and it just might be the non-sovereign character of thinking, judging, and acting that needs tending to. If you have substantive disagreements with him, I would like to see them somewhere, but you are not even engaging seriously with the passages you provide. That seems problematic.
Good comment, Matthew. This is well out of my field, but I do want to learn here. But I’m struggling to find something to latch onto in all this. Yes, we need to think about what judging is, and no, that’s not a problem directly solved by democracy. Well, what’s your answer – or Wilson’s? What is judging?
I’ll get the ball rolling on a positive answer. I think judging is a form of action that produces economic and social results, and is always ultimately based on those results; that is, it’s future rather than past-oriented. I think, from what I know of him, that I’m with Richard Posner on this. As much as I think his politics and economics are wrong, his legal philosophy is right. Judges, whatever their relationship to democracy, not only should but actually do – when it comes down to it – make decisions based on the kind of economy and the kind of society they want to exist. So like I said: politics and ethics.
Thank you for this helpful intervention. Others will know more about this than I do, but it seems to me Posner’s branch of the law and economics literature has a stricter account of judging than you are talking about here- while it is future oriented, it is not centered around what kind of economy one wants, its to a certain extent constrained by the economy that there is- in the sense that a particular economic logic is inherent in the law and the process of legal judgment, and that this should probably be respected.
I agree that judgment is future-oriented, but it is activated by representations of the past, and in that action we use, work with, and in doing so change those representations, or at least what they are to us. I would want to see judgment as aesthetic, political, and creative, and because of that only distantly or secondarily economic or ethical, if at all. To say that might be to go some distance from where Wilson might be (I guess I will need to read his book), but “artisanal” seems like it might be a good way of talking about judgment as an activity, and my supplement to that would be that the material the artisan is working with is inheritance, its historical representation, its custom, uses, and institutions, ways of interpreting and ways of living, that we take up, add to, and reshape (history as not, for better or worse, just “actual history,” whatever that is, or the work of historians). I take it to be a salient point (whether its Wilson’s or not I cannot say) that historians need to get over that.
I think people (and thus judges) should be concerned wholly with the effects of their actions (and thus legal decisions). You say you agree that judgment is future-oriented. Well, judgments by their nature alter the material conditions of life – they put you in jail, or they award you damages, or they let you get married, or whatever. So in what sense is the economic and social effect secondary or non-existent?
It’s an interesting observation about Posner, and I think there’s some general application. Perhaps the structure of law under capitalism (or any given system) determines that any reasonable legal decision will only further entrench capitalist economic logic. I’m sympathetic to that position but it’s one that gives surprisingly little ground to law as an independent form of reason. It seems like the position Marx or Foucault would take (pessimistically), as opposed to, say, E. P. Thompson’s defence of law.
As a historian of, shall we say, the late early modern period, I’m not convinced that capitalism functioned as what Bourdieu would call a structuring structure here. We should see law, along with all the other aspects of the past, as mutually interfering phenomena – with no centre, foundation, or overarching scheme. That attitude would give law at least a minimal independence from capital, or economic logic. It might be only a small gap, but that’s where I’d stick my crowbar (as Thompson did) if I was trying to develop a counter-hegemonic jurisprudence.
I’m glad you think that should be the case, but that just doesn’t strike me as an even remotely accurate account of what happens when someone actually judges anything, whether it be a legal case or a painting. I am trying to understand judgment, not proscribe it. I said judging was future-oriented but activated by historical representation. An account of judging that would be useful to anyone, much less philosophically satisfactory, would have to be able to discuss, even if to challenge, the criteria for judgment, and our ability to judge and to discuss the criteria on which a judgment could be defended and debated in public would be made up of inherited concepts and practices, even as we reassemble and reshape those concepts and practices. The kind of vulgar pragmatism you put forth here isn’t something any historian or jurist could really do anything with.
Undoubtedly, judgments (and the actions that follow) often have social or economic consequences, who is debating that? You are confusing conditions with consequences. Perhaps we are talking past each other, and we could now agree that the conditions of judgment are multiple, and history and legal theory will need to be attuned to that. If your understanding is that judgment is unconditioned or takes place in a kind of vacuum, then I just can’t get there with you. That strikes me as silly. To think of judgment as either actually or ideally “wholly” concerning future effects is to fail to attend to its historicity.
I do not recall advocating an economic determinist approach- quite the opposite- this is what I meant to say by suggesting that judgment was only secondarily economic- perhaps that is poor phrasing. Legal judgments undoubtedly have economic bases and consequences- but that does not make it a primarily economic phenomenon. I was only saying that our depiction of Posner as sharing your “the judge should just decide whatever he or she wants to happen” approach doesn’t strike me as accurate concerning his thought, but I am not a close reader of Posner, among a great many other things, so I advance that as suspicion only.
Regardless of whether I am right about Poser, though, your account of judgment doesn’t strike me as satisfactory or desirable.
My only thought in closing is to go back to the beginning of the intervention, and make a plea for historians to be attuned to other bases for theoretical reflection than their own, if only as part of thinking about what they themselves are doing. The kind of easy dismissiveness we’ve accustomed ourselves to isn’t healthy.
You’re right to press the distinction between conditions and consequences, and we certainly do agree that the conditions of a judgment are multiple. Judges are restricted in what they can do, in all sorts of ways. Nonetheless, I think one of the points of general consensus in this thread has been that whatever historical conditions might apply, they certainly don’t condition or direct judges decisions *absolutely* – in other words, there’s still room for maneuver. I think the same can be said of all the conditions: that is, at a certain point a judge actually has to make a decision, which is not completely determined by the conditions of judgement. At that point, the act of judgement is a question of consequences.
One other note- the assumption that democracy and popular sovereignty are synonymous is already extremely limiting and in the end pretty useless for those who want to take democratic constitutionalism seriously.
Coming from somewhat out of this particular subject area, there is now a small but growing group of historians working on similar questions and topics about the early formation of the European Union’s ‘constitutional’ order (there is still much debate about whether this is an accurate moniker for the practice of law in the EU). We are nowhere near as advanced in covering as much substantive ground as our American counterparts, but I as one of the group find the terminology and topics in these debates particularly illuminating for understanding my own work. I’m particularly grateful to have found this blog.
I wonder if I might offer something back? Our research on the formation and implementation of the Treaty of Rome in 1957 (the closest thing to a constitutional document for European integration) has indicated that due to the practical necessity of diplomatic negotiation and clarifying complex legal mechanisms from several jurisdictional traditions, what actually emerges in the document is a pretty incoherent set of principles and intentions that provide enough room to be subsequently used (Wood’s ‘cherry picking’ from the clip?) by various interested parties to suit their own contextual ends. In essence, the Treaty became a mess of varying magnitudes depending on where in it you looked, and as such has been interpreted to mean many different things at different times. And this was a product of just six negotiating teams with relatively homogenous political and cultural beliefs and a single goal in mind. (For those interested in the European version of this story, you might start with the Contemporary European History journal special issue, 21, no. 3, 2012)
I wonder if there is a tendency in the originalist position to ascribe a coherence to the constitution that simply could not realistically exist given the urgency and context of the Philadelphia Convention? If this ‘messy’ approach to history holds any water at all, surely it gives some credence, perhaps obliquely, to Wilson’s ‘blank check’ idea in that, even if delegates hoped to pass on a particular ‘history’ to subsequent generations, this was likely to be well diluted by the multiplicity of aspirations involved, leaving a document that could only possibly be interpreted as a most general framework? In Wood’s terms from above, perhaps the usefulness of ‘real history’ in this sense is to provide a general context of complexity which would nullify the attempts by ‘histories-lite’ or ‘necessary fiction’ to read a teleology in the constitution that could – at best – only be partially deliberate?
I hope you’ll find it possible to forgive what are likely to be highly uninformed questions by a naive non-specialist!
Thanks for this, Bill. I should really read some of this work on the EU, especially since it’s my own back yard… As for the question about the spurious coherence of the constitution – absolutely, and historians have understood that for a long time now. You’re absolutely right that the complexity of “real history” acts to de-legitimate originalism, or history-lite. The question, of course, is where we go from there!
The English used in the Constitution and other legal documents of the 18th century should be read as a foreign language, putting aside today’s meanings of what seem to be the same words we use today, and attempting to decode the meanings from various clues we can find. This is not only wise for 18th century English, but for almost any communications, even among people who communicate with one another daily, because no two people mean precisely the same thing by the same words on every occasion. When both speaker and listener are alive they are able to interrogate one another to arrive at a common meaning, but when the author is dead we have to find evidence in other things he or his correspondents wrote.
Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since a constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts which have a textual expression, the principles of constitutional interpretation are essentially the same as the principles of statutory or judicial interpretation.
Most legal scholars recognize seven main methods of judicial decisionmaking: textual, historical, functional, doctrinal, prudential, equitable, and natural, although they may differ on what each includes, and there is some overlap among them.