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.”