Posted: May 15, 2006
he "originalism movement" is one of the major developments in American law in the past generation. In 1982, law students at Yale University and the University of Chicago established the Federalist Society, whose mission statement paraphrases John Marshall's axiom, inherited from Publius, that "it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." In 1985, President Ronald Reagan and Attorney General Edwin Meese launched a controversial public campaign to recover respectability for the original meaning of the Constitution, as opposed to the prevailing policy-oriented approaches to constitutional interpretation.
Despite remarkable successes, the originalism movement has disappointed its votaries in some respects—particularly in its failure to change contemporary constitutional law. But it is too soon for originalists to lose heart. Progressive political scientists and New Deal lawyers took two generations to develop the constitutional law they needed to lend respectability to the centralized regulatory state. Mid-20th-century cultural liberals took a generation to convince the Supreme Court to use the "living Constitution" to revolutionize the laws of free speech, religion, and sexual privacy. Originalists should measure their successes and failures not in years, but in decades.
The Heritage Guide to the Constitution, assembled and edited by Heritage Foundation officers Edwin Meese and Matthew Spalding and Cleveland State University law professor David Forte, casts important light on the originalism movement as it enters its second generation. Quite simply, the Heritage Guide is an invaluable handbook for citizens, lawyers, and scholars. This collection is the first systematic attempt by contemporary originalists to explain how they read the Constitution, front to back. There has long been a need for a one-volume book explaining how our country would be governed if officials followed the Constitution's original meaning. In the thoroughness of its clause-by-clause analysis and in its fidelity to original meaning, the Heritage Guide is the best commentary on the Constitution in at least a century.
As one might expect, these essays are decidedly partisan, but in the most public-spirited sense of the term. In his introduction, David Forte describes the vision of the rule of law, constitutionalism, and the common good that unites most contemporary originalists: "Written constitutionalism," he begins,
implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution—the supreme law of the land—as it was originally written. This view came to be seriously eroded over the course of the last century with the rise of the theory of the Constitution as a 'living document' with no fixed meaning.
Original-meaning constitutionalism, according to Forte, prevents the people's passions from overwhelming their reason; it secures and enlarges human freedom; limits government; limits judicial policy-making; comports with the original understanding of what the Constitution was supposed to be; and is not as result-oriented as non-originalist approaches. Now, some will raise hard but fair questions about where originalists' loyalties should lie when these attachments contradict each other, and others will disagree with Forte when he suggests that "the attempt to build a coherent nonoriginalist justification of Supreme Court decisions...seems to have failed." Nevertheless, his introduction nicely expresses the cogency of basic originalist tenets.
* * *
The short essays that follow, written by over 100 constitutional scholars and lawyers, proceed through the Constitution and amendments section by section. As one would expect, the essays vary somewhat in quality, and no single volume, even one as good as this, can cover all of the legal and political issues raised in and by the Constitution. Even so, the essays are consistent and impressive. Each contributor begins by explaining the most likely original meaning of the relevant provision, citing history or political theory where it is relevant, and acknowledging serious disagreements where they exist. Each entry then treats the canonical cases that frame the legal issues that have arisen from the clause in question. When contemporary doctrine rejects original meaning, the authors explain what current doctrine holds, and why and how the Supreme Court has come to prefer it over original meaning. Each essay concludes with a helpful list of key constitutional provisions, cases, and secondary scholarship.
Because the Heritage Guide's essays acknowledge internal disagreements, they also provide a useful barometer of where the originalism movement is strong and where it is weak. Most originalists will agree, for example, with David Forte's discussion of the Commerce Clause. As Forte explains, the power to "regulate Commerce...among the several States," was originally meant to grant Congress power to regulate trade, transportation, and communication across state lines. This grant tacitly withheld from Congress—and reserved to states—the power to regulate what Chief Justice Marshall described in Gibbons v. Ogde (1824) as "the exclusively internal commerce of a State." In other words, Congress could regulate and even ban the flow of marijuana out of California, but it could not use the commerce power to preempt local traffic in and consumption of marijuana, or local policy choices as to whether and when to legalize marijuana, as the Court allowed Congress to do in Gonzales v. Raich (2005). Although a few originalists may disagree with Forte's portrait of the law, here they come as close to unanimity as anyone can realistically expect from a bunch of lawyers.
* * *
To be sure, originalists disagree on some hard structural questions, and the Heritage Guide underscores the strains for those who know where to look. Consider the Necessary and Proper Clause, which gives Congress power to make "all laws which shall be necessary and proper for carrying into Execution" the powers enumerated in Article I and elsewhere. As Seattle University law professor David Engdahl explains, this clause was originally meant to let Congress staff and organize the executive and judicial branches, and to help Congress pass laws to carry its enumerated powers into effect. Engdahl's treatment, however, downplays originalists' problems in interpreting the Necessary and Proper Clause. Some, like Justice Antonin Scalia, place so much priority on minimizing judicial policy-making that they take a hands-off approach to the terms "necessary" and "proper," even when doing so encourages Congress to bootstrap its enumerated powers into a general-welfare power. Other originalists fall out over whether this is the clause that empowers Congress to spend. Originalists who stress history and tradition will say no. In an essay on the Taxing Clause, Chapman University law professor John Eastman explains that by long tradition Congress's spending powers have been assumed to flow from the power to tax to provide for the "general welfare." But other originalists disagree. Stressing the original public meanings of "necessary" and "proper," they insist that Congress may spend only if the spending makes sense as a means to the end of enforcing federal laws or staffing the executive and judicial branches, and if it is not likely to subvert the Constitution's general structure. While the Guide is no less valuable a resource because it omits such rarefied debates, the omissions confirm that the work is best used as an introductory guidebook.
At the same time, this collection shows some of originalists' difficulties in finding consensus on constitutional clauses dealing with individual rights. On some topics, they are in wide and justifiable agreement. For instance, if there is any single article of faith to which all originalists subscribe, it is that the term "due process" refers to "process due." As Boston University law professor Gary Lawson explains in his essay on the Fifth Amendment, "due process" originally meant a "principle of legality," a ban against "executive or judicial action taken without lawful authorization and/or not in accordance with traditional forms of justice." So interpreted, the Due Process Clause does not give federal courts a power to invalidate federal or state actions on the ground that they violate natural property and contract rights (contrary to certain 19th-century state cases, covered by Vanderbilt law professor James Ely in an essay on the 14th Amendment's Due Process Clause) or evolving conceptions of sexual privacy (contrary to the Supreme Court for the past 40 years). But does the 14th Amendment codify any of those same substantive rights when it bars states from "abridging the Privileges or Immunities of Citizens of the several States?" As Hastings law professor Calvin Massey explains, originalists do not have a consensus yet. Some read the clause as forcing states to provide whatever rights they choose to provide on a non-discriminatory basis; some read it as applying to the states the individual rights the Constitution requires the federal government to respect; and others read it as guaranteeing all civil rights that are written into positive law to secure natural rights.
Most significantly, the Heritage Guide reveals to what extent originalist lawyers do not appreciate how natural rights and natural-law principles shape constitutional rights. Consider the discussion by UCLA law professor Eugene Volokh of the First Amendment's Free Speech Clause. One must be careful here, for while Volokh is a fellow traveler with originalists, he is not one himself and does not claim to be. Even so, it is striking how Volokh concludes that the Free Speech Clause does not have a coherent original meaning. Its meaning is "elusive," he claims, because "few people in [the Founding] era really had occasion to define what the constitutional boundaries of speech and press protection might be." Volokh turns quickly to the staples of contemporary constitutional law: recent cases and the normative theories that compete to inform them. Many originalists agree with Volokh; the ones who do not tend to conclude, with Justice Hugo Black 50 years ago and Justice Scalia now, that the Free Speech Clause literally forces Congress to pass "no law" restraining speech.
* * *
Neither of these readings is sensitive enough to the natural-law underpinnings of laws "abridging the freedom of speech." As both University of Dallas political scientist Thomas West and Columbia law professor Philip Hamburger have shown, there is considerable evidence suggesting that from the founding through the 19th century, Americans understood freedom of speech to be both a civil and a natural right, subject to civil regulation based on the natural law. Founding era natural-law theory provides a tolerably clear guide for distinguishing a proper "regulation" of free speech from its unconstitutional "abridgement." Inasmuch as pornography and defamation violate the laws of nature, for instance, they fall out of "freedom of speech," and government may regulate them without "abridging" a constitutional freedom.
Volokh doubts that natural-law principles can do such specific work. His skepticism is typical of contemporary lawyers and scholars—even originalists, like Justice Scalia, for reasons that Harry V. Jaffa explained in the Winter 2005/06 issue of the CRB ("The Disputed Question"). Natural-law theory was thoroughly discredited in the American legal academy in the first third of the 20th century. Though many originalists are suspicious of legal realism and the other legal theories that supplanted natural law, they have a long way to go to reconstruct the moral imagination that informed the Constitution's drafting and ratification. Absent this moral context, the Free Speech Clause and many other important rights guarantees reduce to unprincipled assertions that cannot be explained by the few concrete examples we have of the founders' attitudes and practice.
In short, while the originalism movement is not triumphant, it is still doing better than anyone could have expected 20 years ago. Only another 20 years will tell whether its contributions will make a serious difference in the academy, the Supreme Court, and the country.