Originalism and the Virtue of Constitutional Piety
posted by Nate Oman
Over the weekend, I loaded my iPod with a lecture by Larry Kramer and listened to him talk popular constitutionalism while I mowed the lawn. At one point, he went out of his way to insist that he was “profoundly anti-originalist,” a statement that he qualified by saying “if by originialist you mean that we should do something just because that is what the founders said or intended.” My first reaction was that Kramer was responding to a straw man. Originalism is not a form of mindless filial piety, it is a theory of textual meaning and adjudication. The notion that the meaning of a legal text is best construed by reference to the times in which it was written, and that judges are bound by rule-of-law values to ground their decisions in that meaning seems like a thoroughly respectable jurisprudential theory. As I emptied the grass clippings into the compost pile, however, I started re-thinking my reaction to Kramer’s throw-away line. Yes, he was responding to a straw man in so far as judicial or academic originalists are concerned, but surely when it comes to popular originalism there is a certain ancestor worship going on. Might there be something to be said in defense of such piety?
In college, I got involved briefly in municipal politics, working on the campaign of a friend for city council. I remember going to a meeting where a candidate for some piddling office — city attorney? — was asked by one potential constituent if he would favor a new constitutional convention to deal with Roe v. Wade and other excesses of the activist judges. The candidate solemnly responded that while he was concerned about the abuses of the judiciary, he would not favor another constitutional convention until we can guarantee that it would be staffed by another group of patriots and geniuses like Washington and Madison. At the time, I thought the exchange pompous and silly in the extreme. The idea that the opinion of this candidate on matters of high constitutional politics was even remotely relevant to the job of prosecuting parking tickets (or whatever it was he was running for) or that a new constitutional convention was in any way shape or form a real issue struck me as ridiculous. I also found myself intellectually embarrassed by the candidate’s pious nostrums on the wisdom and virtue of the Founders. This wasn’t political or constitutional discussion but rather the ritualized genuflection before Fourth of July caricatures. “Get real!” I thought.
Now I am not so sure. I still think that the solemn exchange between the candidate and constituent was slightly comic, but I am a lot more sympathetic to ritual and public piety than I used to be. One of the great insights of Burke is that habits and prejudices matter to a tremendous degree, providing a kind of ballast to the polity that we throw overboard in a storm at our peril. He was particularly withering, of course, in his denunciation of pointy headed intellectuals (I swear he uses that phrase some place) who want to cut through popular pieties in the name of reason and clarity. Holmes and the Realists had a point when they insisted that much of legal discourse is transcendental nonsense that ought to be replaced by a more honest and clear headed kind of judging. The acids of functionalism, however, are hard on popular piety. If we want the constitution to act as a real bulwark against this or that popular whim, then it seems to me that it needs something of the mysterium tremendum, a sense of the sacred that ought not to be profaned by transgression. I don’t see that constitutional theory has much to offer in terms of maintaining that popular awe. Without something like it, however, I suspect that the constitutional gabbing in the law reviews and the case reporters is ultimately pretty pointless.
Hence, it seems to me that there is a case to be made for doing at least some things simply because they were done by the Founders, if only to preserve the awe felt by candidates for city dog catcher toward the Founders and the institutions about which law professors spin their impious theories.