Originalism and its Critics: The Critics’ Turn

February 19

Alas, this may be a boring week for those of you who are still reading my posts about the originalism class that Eric and I are co-teaching this quarter. (We are in week seven out of nine.)

This week’s topic was some of the alternatives to originalism — Ackerman (“The Living Constitution“), Strauss (“Common Law Constitutional Interpretation“), and Waldron (“The Core of the Case Against Judicial Review“) — and none of them seem to have knocked originalism out of the ring. (In a longer class we would also have read Dworkin and Ely.)

Here is Eric’s take:

I was familiar with this work, but rereading these articles after the originalism pieces, it was easier to appreciate Ackerman’s argument that common-law constitutionalism doesn’t come to terms with the role of popular sovereignty in American political culture. Who ever talks about the common law anymore? Or of great common-law judges?

But then Ackerman’s “originalism,” according to which public deliberation takes the place of the Article V process, founders on ambiguity as to what counts as an amendment. I tend to think that the justices implement their ideological preferences subject to some real but hard-to-specify institutional constraints about which they are (sometimes) willing to hear argument, above all precedent. If that is common-law constitutionalism, I suppose I’m on board.

But I prefer Waldron’s view that judicial review should be junked altogether, a view that has the happy consequence of making it unnecessary to take an interpretive stance toward the text. Some students thought that under such an approach, rights would no longer be protected, but it is plain that Congress and state legislatures do far more to protect rights than the Court does. Alas, Waldron’s position is as remote from American reality as Mars.

I am the wrong person to attempt to rehabilitate any of the theories from Eric’s criticism. But I have a few additional observations:

On Strauss: I think it is open to debate who had the better view of the common law — Cardozo (Strauss’s pick) or Blackstone. Yes, us insiders know that judges “make” law but it is an important element of our system that they “make it as judges make it, which is to say as though they were “finding” it — discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” The quote is (of course) from Justice Scalia, joined by those paragons of judicial restraint, Justices Brennan and Marshall.

One interesting point raised in class is that the genius of the American common law system is that there are 50+ courts of last resort on most common law questions, which diminishes the tyranny of the court and makes genuine common-law evolution more possible. Perhaps a real common law constitutionalism would involve eliminating the Supreme Court and giving the state courts final authority over federal constitutional questions. Ironically there was an American constitutional system that did that, but it didn’t last very long.

On Waldron: I agree entirely with Eric that you could have a good legal system without judicial review, and also that the point is moot for American purposes because we do have it. But is Eric really right that abandoning judicial review would “have the happy consequence of making it unnecessary to take an interpretive stance toward the text”? Judges are not the only ones who promise to uphold the Constitution — the President and Congress do too, and sometimes they even follow through.

I had thought that part of the virtue of Waldron’s argument is that legislatures are capable of engaging in constitutional deliberation, and there is little gain by second-guessing them. But it sounds like Eric thinks that nobody should engage in constitutional deliberation at all.

Eric might say that the President and Congress will largely implement their policy preferences (subject to constraint), even in a Waldronian world. But remember that he thinks that about courts, too! If we need an interpretive theory for courts, presumably we need one for everybody else.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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