Wurman 2014 The Founders' Originalism

Summary

Wurman, Ilan The Founders' Originalism 2014

• Note: the following lines from the article have been reordered to collect together the characterizations of each originalism.
• The founders themselves, however, defended the legitimacy of the Constitution on grounds that included elements of each of the three current originalist lines of thought, but transcended all of them. [natural rights / “presumption of liberty”r;, responsiveness to popular will / “living, breathing document”; social contract / “presumption of constitutionality”]
• And we are bound to it not necessarily because we philosophize that it adheres to some criterion of legitimacy, but because of a prudent judgment that, whatever its faults, the Constitution merits being preserved and conserved. This crucial insight steers us away from the ideologically inflected originalisms and leads us back to originalism simply.
• Three Originalisms
• ’s most important champions are law pro- fessors Randy Barnett and Richard Epstein.
• Both Epstein and Barnett adhere to originalism because they believe the very idea of a written constitution requires it.
• Barnett argues that only a constitution that “contains adequate procedures” to protect natural rights can lay claim to legitimacy and our obedience.
• Even if the Constitution were formally abolished today and re-ratified with exactly the same text, it would not provide any better reason for non-consenting parties to adhere to its commands.
• Analogizing to contract law, Barnett argues that interpreting written instruments requires adherence to original meaning; otherwise, parties could contradict the explicit provisions of the contract, and interpretation would require the difficult enterprise of reading the minds of the parties. [witness the difficulty in writing unambiguous contracts and the quantity of contract law]
• Barnett argues that, if the text of the various constitutional provisions is properly understood, interpre- tations of that text will suggest an underlying presumption of liberty.
• More specifically, he argues that, when properly understood, the com- merce clause, the necessary and proper clause, the Ninth Amendment, and the privileges or immunities clause of the 14th Amendment all provide justification for this presumption.
• Epstein ... obligation to the state must come from a contract whereby, when the state takes liberty or private property away, an individual gains “some equivalent or greater benefit as part of the same transaction.”
• Epstein admits that the constitutional text is vague and insists that we must therefore interpret it with particular background principles.
• He claims that Lockean classi- cal liberalism (which he takes to be essentially consistent with modern libertarianism) is the proper choice for an interpretative framework because it was the most significant moral theory at work during the founding era.
• Progressive originalism is synonymous with another law professor, Jack Balkin.
• [Jack Balkin] His fundamental argument is that the Constitution is written in three different kinds of clauses — rules, stan- dards, and principles — and that, while the constitutional rules are fixed (such as the requirement that the president be at least 35 years of age), the framers left the text’s standards and especially its principles to be interpreted by future generations.
• Balkin argues that, as a consequence, the framers intended the Constitution to enable politics.
• He argues that each generation confirms its consent by debating constitutional construction. In their perpetual de- bates, Americans try to convince each other of what the constitutional text means for the changing realities of American politics.
• The continuing debate does not just provide a kind of consent; it causes constitutional meaning to evolve. For progressives, the Constitution is le- gitimated not by mere consent but by the document’s responsiveness to changes in democratic politics over time. In short, the Constitution is legitimate because it is democratic.
• Conservative originalism — the oldest version of originalism — is most prominently associated with the jurisprudence of Justice Antonin Scalia and the aca- demic work of Judge Robert Bork.
• The conservative originalists are also called “judicial minimalists,” meaning they believe in “judicial restraint” and the “presumption of constitutionality”--the presumption that courts should generally be hesitant to strike down democratically enacted pieces of legislation unless they involve actions specifically prohibited by the Constitution’s text.
• Originalists of this stripe argue that the legitimacy of the Constitution comes from popular sovereignty; in other words, we owe obedience to the Constitution and adherence to its constraints because it was the people themselves who imposed these constraints in the first place.
• Antonin Scalia is the most prominent advocate of this view. Another ad- herent of it, Michael McConnell ....
• [Keith] Whittington, like Barnett and Epstein, rejects the notion of tacit consent, but he claims that we give real consent each time we amend the Constitution, just as the founding generation gave its real consent when it ratified the Constitution.
• ... judicial minimalism is a byproduct of a commitment to popular sovereignty. This is best explained by Robert Bork: .... Where the Constitution speaks, the people rule through the Constitution; where it does not speak, the people rule through the everyday political process.
• ... Congress or the states may be restricted from legislating freely only where the Constitution explicitly reserves a substantive right.
• ... McConnell, Lino Graglia, and Kurt Lash, also adhere to some variant of this position.
• For Barnett and the libertarian originalists, the Constitution’s open-endedness indicates its enduring Lockean character; for Balkin, that very open-endedness is intended to be a warrant for continuing democratic evolution.
• The former [judicial minimalists] want to see even fewer democratically enacted laws struck down so as to respect the authority of the people, whereas the latter [libertarian originalists] want to see even more struck down so as to protect natural rights.
• ... judicial minimalists are committed to a kind of democratic legitimacy whereby the people must have the power of self-government except where the peo- ple themselves have explicitly decided to withhold that power.
• The Founders on Founding
• The Declaration, in liberating the colonies from obedience to the unwrit- ten British constitution, set forth what makes a government legitimate or illegitimate with cutting precision. The ideas behind the three schools of originalism today can be found in the three-fold explanation the Declaration offers. For a government to be legitimate, Jefferson tells us, it must derive its powers from the “consent of the governed”; it must secure unalienable rights like life, liberty, and the pursuit of happiness; and it must create a representative or democratic form of government.
• The new, legitimate government must take a democratic or republican form.
• In the long chain of usurpations and abuses that Jefferson cites ... several complaints against unrepresentative government.
• Jefferson’s argument clearly resembles the progressive-originalist contention that responsive, elected, republican government is also a source of legitimacy, and its absence a cause of illegitimacy.
• The framers believed that the Constitution needed to both establish a republican form of government and protect natural rights; but they also believed that, to be legitimate, the Constitution itself needed to be rooted firmly in the consent of the governed.
• But popular sovereignty has to do with the foundations of political order .... Popular sovereignty is a principle that is at once more fundamen- tal and less frequently relevant than self-government, representation, and rule by the general will.
• Bound By Prudence
• Critics of libertarian originalism might argue that the Constitution still permits tremendous government power and that the Bill of Rights did not originally even ap- ply to the state governments, so it is hard to see how the defense of natural rights is the document’s foremost purpose.
• Critics of progressive origi- nalism might argue that key elements of the Constitution do not seem geared toward truly democratic decision-making at all, pointing for in- stance to the extremely disproportionate power of the small states in the Senate.
• Most fundamentally, critics of conservative popular-sovereignty originalism could point out that women, slaves, and many others were excluded from political activity when the Constitution was ratified and were therefore unable to offer their consent.
• [irrelevant diversion into Jefferson "usufruct to the living" and Madison "obedience to the will of the Authors of the improvements"]
• [Call to Purdence:] Madison fuses both points: Future generations should be afraid of how fraught with risk any re-founding might be, and they should also be grateful for the unique innovations of the founding generation and its amazing improvement on the ancient examples.
• It is thus the judgment of prudence that justifies, for Madison, maintaining the American constitutional order despite its imperfections.
• We are indebted to the founders for the impressive innovations they made, and we have little reason to believe we would improve on their work if we were to start over as they did.
• Original Meaning
• The framers intended the Constitution to be republican, to protect our natural rights, and to be obeyed simply because the people consented initially.
• Instead of reading the Constitution through the lens of a single theory of original meaning, we should simply read it with an awareness of its compromises and philosophic inconsistencies.
• It might even allow us to approach constitutional interpretation from an originalist perspective that can take into account all three grounds of constitutional legitimacy and still be a feasible enterprise.