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.
July 14, 2008 at 10:20 am
Posted in: Constitutional Law, Jurisprudence
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Responses (29)
Brett Bellmore - July 14, 2008 at 12:29 pm
Ancestor worship is better than black robe worship, if you ask me. And that seems to be the real alternative to originalism, aside from simply giving up on having an enforcible constitution.
Aaron Walker - July 14, 2008 at 3:07 pm
The only theory that is justified for judicial review is the desire to follow the constitution as written, and as those words were understood at the time.
If you follow any other theory, then you can’t answer the most basic question: what gives you the right to do this?
The only justification for judicial review is not the wisdom of the judges, but that the constitution is higher law than any mere statute, and therefore trumps it. But if you are not following the constitution, then you have no right. Period.
Otherwise, you might as well just let the people have at it.
anonprof - July 14, 2008 at 4:26 pm
Where did you find the lecture? My lawn is due for a mow over the weekend. I wouldn’t mind having a listen.
Ed Nutter - July 15, 2008 at 1:56 pm
Ditto what Aaron said.
Note to Justice Kennedy. The opinions of Europeans is as relevant to Constitutional interpretation as the opinion of the average six year old.
Nicky - July 15, 2008 at 2:06 pm
The reason to not have a new Constitutional convention is stability. Our existing one has worked pretty well for over 200 years with only a few dozen amendments needed.
The benefit of this track record trumps any advantages that a new document might hope to offer.
Nicky - July 15, 2008 at 2:11 pm
The reason to not have a new Constitutional Convention is not ancestor worship or a lack of talented people. It’s stability. Our existing constitution has worked pretty well for over 200 years with only a few dozen amendments needed.
The benefit of this track record trumps any advantages that a new document might hope to offer.
Dick Leed - July 15, 2008 at 2:12 pm
Alexander Hamilton somewhere or other makes the same point. He also uses the word “awe” in reference to the attitude the general population should have toward our founding documents.
Kent G. Budge - July 15, 2008 at 2:31 pm
If you follow any other theory, then you can’t answer the most basic question: what gives you the right to do this?
Sure you can:
“I’m a really smart lawyer who was selected for this job by the President and approved by the Senate, both speaking in the name of the People.”
Mind you, I’m not saying this is a good answer. I actually find it kind of appalling. But it’s important to understand that it’s the answer on the lips of at least four of the present Supreme Court justices.
BobThompson - July 15, 2008 at 3:58 pm
I have no quarrel with the opinion that the courts have trouble understanding their role under the Constitution, but what about the legislative branch? Are we just to accept that they can go ahead and do as they please (passing unconstitutional laws) knowing that the courts will not be able to figure it out.
Leo D - July 15, 2008 at 4:52 pm
Isn’t it a tragedy that we have on the Supreme Court of the United States five people (one appointed by Gerald Ford, one by Ronald Reagan, and one by George H W Bush) who believe their oath to uphold the Constitution is not in conflict with their continual attempts to massage the clear meaning of that Constitution with foggy penumbras so as to make it unrecognizable? Words, just words.
When even Laurence Tribe, a supporter of the outcome of Roe v Wade calls the decision bad law, and Ruth Ginsburg likewise thinks it was at least ill-timed, yet it still stands as the law of the land 35 years afterwards.
The Heller Case was the quintessential case of fog vs clarity. All nine justices agreed the 2nd Amendment speaks of an ‘individual right’, yet four of the abominable five were able to mentally square the circle by saying, in effect, ‘but we’re above the Constitution, we’re liberal justices, so we can talk away that right with words’.
Chris Smith - July 15, 2008 at 8:03 pm
While I support and defend the Constitution, I can’t reach ‘awe’ about a document with glaring warts like a 3/5th compromise.
Something needs to be done about the damaging drift of power into DC. It is possible that, if you took the folks who penned the 10th Amendment through time to the Great Depression, that they would have agreed to FDR’s New Deal.
It is also possible they would have informed FDR where to go and what to do upon arrival.
Midwesterner - July 15, 2008 at 9:12 pm
An amendment can totally revoke the Constitution by the same mechanism with which it can make small changes to it. The substantial number of amendments that have successfully cleared the process proves that there is available a remedy for changes in society and science. Even if it were in need of extra-constitutional correction, it would not be appropriate for its own creation, the Federal government, to make them. Even the amendment process that uses the legislative branch is using the people (the House) and the states (Senate pre 17th) to initiate the process. No Federal role was envisaged.
Some of the founding authors were incredibly insightful and perhaps in some ways even noble. Some of them were political gamers working the system. There were factions who saw different things in the same text and in some cases they probably even out foxed each other.
But the final product was a contract between the states and between the people. We need neither black robe worship or ancestor worship to understand that it should be interpreted as what those ratifying thought and intended it to mean. If any of it is problematic in the eyes of the states and the people, there is a proven recourse. The Federal government (say nothing of the National government) is not a party to the Constitution, it is the subject of it. Federal government has no role, no rights, no merit beyond what is extended to it by the contract.
Any tolerance, either by restraint from due interference or by judicial legislating, of violations of this contract is judicial activism. Any judge that hears a dispute of a lawful contract and either adds or removes terms of the contract based on his own feelings or opinions is not a judge at all, but a partisan. This applies when interpreting the constitutional contract as well.
It is not for any arm of the Federal government to alter its own creation document.
mockmook - July 15, 2008 at 9:46 pm
The Constitution is flawed, but awesome.
The Founders were flawed, but awesome.
Everything I know of the Founders suggests they were unique in their wisdom and learning regarding governments, power, and political behavior.
J - July 16, 2008 at 12:59 am
I believe his beef with the 3/5ths compromise is the mistaken popular concept that this reduced the value of a slave’s life to 3/5ths that of a non-slave. In reality, it served to reduce the slave states power & influence by reducing their representation in Congress. It put the slave states in a bind, eventually — to gain power through increased representation reflective of the actual population of the slave states, they would have to free their slaves.
The 3/5ths compromise, like the Electoral College, is very subtle in its genius and in the way it reflects the virtues of the Federal system created in the US Constitution. Both are a reflection of the astounding wisdom and of the Founders.
lewy14 - July 16, 2008 at 2:07 am
Our existing one has worked pretty well for over 200 years with only a few dozen amendments needed.
Um, with respect Nicky, that’s glossing over the bloodiest conflict in US history – the Civil War!
Whatever the odious moral implications of the 3/5ths compromise, the plain fact is that it (and the rest of the compromises over slavery) didn’t work to prevent conflict! It failed!
The Constitution went into production at around 0.7beta, out of necessity. It took Lincoln to release 1.0.
Another major release was with the New Deal. Major new features.
The modern “commerce clause is whatever we say it is and the 10th Amendment is an inkblot” Constitution is only about 80 years old.
Howard - July 16, 2008 at 2:35 am
Pious (or principled) deference to The Founders might make more sense if They offered a unitary body of thought, which They do not. So, even if the ghost of James Madison appeared before the SC to explain what really was on his mind, he has no more standing as the “authoritative” interpreter of the Constitution than would, say, the ghosts of Hamilton, Patterson, or John Marshall. In the end, what we have is a document, sets of more or less helpful commentaries by its most thoughtful 18th c. contemporaries, and a long history of other commentaries and decisions. Equally, recourse to ” it should be interpreted as what those ratifying thought and intended it to mean” sounds good, but I don’t know how to determine what those ratifiers, many thousands of them, had in mind. Did the Pennsylvanians have the same understanding as the Rhode Islanders? How about those persuaded to support ratification based on the promise of a yet-unwritten Bill of Rights? Clearly, they believed they were supporting a defective document. And it’s hard to know what any given majority or minority of them thought of the final (amended) product. If there is a non-problematic approach to Constitutional interpretation, I’ve yet to see it.
Midwesterner - July 16, 2008 at 10:52 am
This is where the effort demonstrated in Heller to understand the word usages and general assumptions and frame of reference of the time are a good sign of judges doing what judges should do. For example, in Heller the court referenced a discussion in Lords of an event (the Gordon Riots) that occurred in London. Troops confiscated the weapons of the rioters and there was discussion of the legality of that in Lords. The Duke of Richmond sided with the rioters and stated that they “had taken up arms and formed themselves into associations, for the defense of their lives and properties.” His use of the phrase “right to keep and bear arms” is referenced in Heller. But even more interesting and indicative of the general assumptions of the time (and given only passing mention) were the grounds on which the Lord Chief Justice, William Murray, 1st Earl of Mansfield opposed him. Bear in mind that his own personal house was one that had been invaded. Quoting from the discussion in Lords as recorded here (link):
He said that the troops, in taking away the arms of the rioters, were acting as civilians should of and would of had they the capacity. At least that is my reading of it.
It is quite easy to get a fairly good idea of the over arching context of the time and that knowledge can inform our interpretations of old laws and contracts as well as we can understand the intent of contemporary legislators. Perhaps Mansfield’s statement was a little bit more in support of civilians using weapons and taking matters into their own hands than Justice Scalia was comfortable with.
But it certainly is compatible with the Peelian principles laid out almost a century later.
My apologies if this discussion is OT.
Blogger - July 16, 2008 at 1:35 pm
Professor Oman,
This post is absurd. You basically use 1,500 words to explain why we should respect tradition, but provide no substantive justification as to why tradition matters. Burke favored tradition because it provided stability, which you barely mention at all. Instead, you seem preoccupied with a sense of reverence that, quite frankly, is completely inconsistent with Burke’s stability rationale.
Your tradition argument seems to be rooted in some notion of original intent (i.e. the Founders said something was great, so we should blindly honor their wishes). But don’t kid yourself. You can no more credibly claim that we should honor the Founders’ intent than you can realistically advocate honoring the “intent” of any other “generation.” Logistically, such arguments simply do not work.
Here, I’ll provide you with an illustration to prove my point. What if I was to come up to you and say the following: “Gee, this Iraq War is really a mess. How about we honor the intent of OUR generation in deciding what to do about it?”
This proposition sounds ridiculous, in part, because it is theoretically impossible to discern the wishes of any “generation,” and in part, because I have not defined what “our generation” is. When you talk about revering the Founders’ principles soley because they are the “Founders’ principles,” you make the same two fundamental analytical errors.
First, you make the tremendous mistake of presuming that every Founder agreed with the principles espoused by every other Founder. As a student of revisionist history, you probably haven’t yet had the opportunity to actually read an accurate historical text, but when you finally get around to reading one, I’m quite sure you’ll find that the Founders’ visions of America were significantly heterogenous. Hamilton, for example, wanted a president who served for life. Meanwhile, Jefferson once remarked that it was unnecessary for the United States to have a permanent national government at all, but that it should instead have a “committee” that convened every so often to discuss matters of importance that arose between the states. Under your methodology, whose tradition do we honor?! Oh no! I guess we’ll just have to combine the two and say that the American government should — out of “tradition,” of course — consist of a life-tenured, but not permanent, committee of review. Adios, bureaucracy!
Second, you do not define the time period to which your post blindly refers. You talk about the “Founding,” but what does that even mean? The year 1787 (when the Constitution was written), the year 1791 (when it was ratified), the early 1770s (when Franklin circulated his ‘Join or Die’ propaganda), 1781 (when the British surrendered at Yorktown), 1814 (when our second war with the British concluded)? To what period are you referring?! Do tell. (This is especially important because I need to know exactly what other periods you’re excluding in order to poke additional holes in your argument).
I guess my point is that your post says nothing of any intellectual value. Maybe you didn’t intend it to, and that’s fine. But if you did … well … perhaps you better stick to contract law.
Nate Oman - July 16, 2008 at 1:52 pm
This is not a post about constitutional interpretation; it is a post about popular piety toward the framers. If you want a sophisticated defense of originalism as a theory of textual meaning, go read Larry Solum’s “Semantic Originalism.” My point is that the piety of the hoi polloi, even if it turns out to be intellectually incoherent, can be a precious thing and we ought not to look down our noses at it too much. (Even if we can’t turn it into a theory of adjudication.)
Blogger - July 16, 2008 at 2:05 pm
Then I guess my next question would be: “Why did you post this in the first place?” You talk about Kramer’s lectures (which focus on the topic of constitutional interpretation) and you talk about how your friend didn’t support a second Constitutional Convention because he believed that the Founders got it right the first time. Now you’re telling me that those (admittedly small) substantive bits didn’t have anything to do with the overall object of your post?
It seems to me that this post is a waste of time. Either you are offering a very weak interpretive methodology, or your post just boils down to “I like hero worship.” Either way, I guess I feel like you should have spent this time doing something more productive…
nbo - July 16, 2008 at 2:11 pm
Your concern for my use of time is touching. FWIW, the post boils down to “I like hero worship.” (Also, my friend wasn’t the one opining on constitutional conventions…) On an unrelated point, I am not actually sure that Kramer’s work has all that much to say about constitutional adjudication. He has a lot to say about constitutional politics, but that is not quite the same thing.
Anti-Blogger - July 16, 2008 at 3:16 pm
One wonders whether it is good to idolize founders as many of us do. For example, Thomas Jefferson was a hero of mine in childhood. I did a History Day Project on Jefferson and Communicating Values through the Declaration of Independence. To my chagrin, I’ve found that Jefferson had a difficult time living up to those values he espoused, which has lessened him in my eyes. It has effected to a degree the majesty of Jefferson’s words. There’s also the Parson Weems stories of George Washington about chopping down a cherry tree or throwing a rock across the Rappahannock. They are lore, like John Henry or Paul Bunyan. Is there a good that comes from those stories or idol worship? Ought not that idol worship be based on accurate, or at the very least, approximate information about the Founders?
Brett Bellmore - July 16, 2008 at 3:18 pm
Government is a consensual illusion, if people stop believing in it, what’s left of it? An armed gang threatening to shoot anyone who won’t ante up for their ammo budget?
Anybody who wants a government to continue functioning but who wants to get rid of the ‘pieties’ that shore up the illusion is a fool. They’re sitting on a branch sawing away at it, expecting the rest of the tree to fall away when they’ve finished.
submandave - July 16, 2008 at 5:50 pm
J, bravo on deflating the oft-misused 3/5 compromise. The fact that it was Southern slave states that supported full representation of slaves squared off against Northern states that wanted practically no representation of slaves is usually unknown. The compromise had nothing to do with the perceived worth of an individual and everything to do with achieving a balance of power between Northern and Southern states.
Blogger - July 16, 2008 at 6:28 pm
Anti-Blogger–
I’m not saying that it is wrong to idolize the Founders. To the contrary, they were actually my heroes growing up. What I have said all along is that it is inappropriate to BLOG about idolizing the Founders. You can idolize whatever you want, but when your fascinations reach the point that you’re blogging about them in an allegedly academic setting, maybe you’d better stop. Of course, if you would rather turn this blog into a discussion about Superman, Paul Bunyan, or Green Lantern, have at it.
Brett Bellmore–
I don’t even know the post to which you’re responding. I never said idolization was detrimental to the US. In fact, I would even favor a moderate amount of reverence for historical figures; after all, that’s the bond that unites us all as American citizens.
Rather than attack Oman’s love of Thomas Jefferson, I intentionally limited my prior posts to combating the original intent canon of constitutional interpretation — which demonstrates the dangers and impracticalities that result when a “reverence” for the Founders goes too far. I also discussed the reasonability of blogging about things that every true-blooded American citizen already knows very well (i.e. love of country).
I’ll tell you the same thing that I told Anti-Blogger: if you would like to start a blog about how delicious American Cheeseburgers are, or how great it is that our national flag is red, white, and blue instead of purple and orange, I’d wish you the best of luck.
Midwesterner - July 17, 2008 at 3:56 pm
Reading the last paragraph of this(Link), and then reading this(Link), puts both your article and comments in a different light.
I think you should have disclosed something so intrinsic to your discussion of attitudes towards the authors of the Constitution. Many who came here via Instapundit as I did will not be aware of the religious aspects of your faith in the Constitution.
Nate Oman - July 17, 2008 at 4:12 pm
Let me get this straight: I need to post a “I’m a Mormon” disclaimer if I post on originalism? Give me a break. Also, Ralph Hancock is a good guy and an acquaintance, but I in no way feel bound by what he says about theology or constitutionalism. Finally, the thrust of my post is if anything Straussian rather than pietistic, so it is not even clear that I am advancing some religious agenda here as opposed to undermining it.
Midwesterner - July 17, 2008 at 9:54 pm
Your words:
Followed later by:
Let me get this straight, this is a post about originalism again? I took you at your word and thought it was “a post about popular piety toward the framers”.
Knowing that the author believes the framers were divinely inspired is quite relevant towards weighing his opinions on the merits of popular piety towards them. You appear to be saying that divine inspiration of the framers is Ralph Hancock’s opinion and not the doctrine of the Mormon church. If that is in fact the case, then I apologize for getting my facts wrong.
I note that you label any originalists who fall outside of the judiciary and academia with a pejorative “popular” and state “there is a certain ancestor worship going on. I read that and see a clear Ivory Tower mentality.
As one of those “hoi polloi”, I find the canonization of the framers offensive and I find your assumption of it as a necessary explanation of “popular originalism” doubly so.
Jun - December 1, 2010 at 4:40 pm
I think the freedom of religion is important; therefore I don’t see the need for one specific religion to be taught in schools. If nothing else the children should be introduced to several different religious paths.
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