A CRB Discussion on Originalism and the Constitution
Posted: October 8, 2014
n the Summer 2014 CRB Edward J. Erler reviewed Originalism and the Good Constitution by John O. McGinnis and Michael B. Rappaport. Their Upon Further Review discussion is joined by Stephen B. Presser, Raoul Berger Professor of Legal History at the Northwestern University School of Law. John O. McGinnis is the George C. Dix Professor of Constitutional Law at the Northwestern University School of Law. Michael B. Rappaport is the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law. Edward J. Erler is a senior fellow at the Claremont Institute and a professor emeritus of political science at California State University, San Bernardino.
John McGinnis and Michael Rappaport: We are grateful that Professor Erler took the time to review our book. Unfortunately, he mischaracterizes our position and disregards an important aspect of the Constitution in the service of his own political philosophy. To begin with our own position, Erler treats us as if we believe that whatever a supermajority of the nation enacts, based on its own preferences, is a good constitution. This is not true. We make clear that we believe that a good constitution incorporates the core principles of the liberal tradition.
We do believe the Constitution has to reflect to some degree the preferences of the people: otherwise it would not survive, let alone function as an anchor for the polity. Moreover, part of what makes a constitution good is that it promotes a polity that furthers the preferences of the people. But our argument for the supermajoritarian process also looks beyond preferences to the judgments of the people. We thus develop at some length an argument to show that supermajoritarian processes are the most likely method for a polity to entrench provisions that are in the public interest.
Erler appears to believe that the Constitution articulated certain principles that should not be changed by future generations. But the Constitution itself reflects the framers’ understanding that each generation could contribute to making our fundamental law. The amendment provision in Article V of the Constitution is general in scope, permanently excluding only equal representation in the Senate from legal transformation. Although the Constitution certainly treats the results of the founding moment of 1789 as important, by the terms of the document, the founding cannot be regarded as sacrosanct for all time. Thus, Erler’s major complaint about our theory of the Constitution—that our theory recognizes the Constitution’s adaptability—is really an argument against the nature of the actual Constitution. Any theory justifying originalism must take account of Article V.
The Constitution’s capacity for deliberate and considered change is not merely a matter of theory, but is also a central theme of the nation’s history, generating provisions approved of by Erler. To begin with, the Constitution would not have been ratified if the Federalists did not agree during the ratification contest to propose a Bill of Rights in the form of amendments. Later, the Reconstruction amendments removed the blemish of slavery from the nation. While Erler attempts to view these amendments as a continuation of the founding, this is clearly not the case. The original Constitution permitted slavery and the ending of slavery reflected the views of a different generation, transformed by the experience of the Civil War. Finally, the amendments of the Progressive Era, such as the income tax and the direct election of senators, reflected the views of that time period and significantly modified the Constitution.
While the supermajoritarian amendment process allows for constitutional change to reflect new values and circumstances, that process helps the people keep faith with the ideal of limited, accountable, and balanced government. If there had been a majoritarian constitution-making process, the Reconstruction Amendments would have likely been much more nationalist, eviscerating federalism. Conversely, as we note in the book, if the New Deal coalition had not been permitted to remake the Constitution through the courts, but had instead been forced by originalist constitutional principles to use amendments to authorize its legislative agenda, the federal government would enjoy less centralized power than it does today.
Erler compares us to Bruce Ackerman, which would be taken as a high compliment in most of the legal academy, but we must demur. Ackerman believes that the Constitution can be modified without following the rules established in Article V. Although we do believe that the Constitution can be changed, it is essential that those changes be made according to the Constitution’s prescribed procedures. There is nothing odd about making a case for originalism that recognizes change, given that world changes and particular institutions may need to change with it. In fact, denying future generations the opportunity to change the Constitution would inconsistent with republican government. The key is that the changes in fundamental law should occur only through the beneficial process provided in the Constitution—a process that treats each generation equally and prevents one generation from modifying the constitution without a sufficient consensus.
Unfortunately, Ackerman’s theory of constitutional change does not respect these limits. It allows one generation to ignore the rules of the game followed by other generations and to write its views into the Constitution without the beneficial checks and balances that the document mandates. Moreover, Ackerman’s theory also lacks formality—the rules of the game he prescribes are not written down and therefore the people allegedly participating in it do not even know what the rules are. This lack of formality itself undermines its capacity to function as good fundamental law, because it would lead to endless disputes about when an Ackermanian constitutional moment occurred.
Although we differ with Erler as to various matters, we are disappointed that he chose only to criticize our position rather than to attempt to find some common ground between his and our views. Here are two such areas. First, the amendment process can be seen as one that is well designed to capture the application of enduring natural law principles in a changing material world. Surely, Erler cannot think that political institutions and norms might not have to be changed in light of new knowledge and technology. Without the supermajoritarian process, we must rely for these new institutions and norms on either judges or on majorities. We show why these are inferior solutions. And we believe that Erler could have modified our arguments to show why these are also inferior to a supermajoritarian process if one views constitutions as discovering and tracking natural law principles.
Second, we argue that originalism should employ the legal interpretive rules at the time of a constitutional provision’s enactment to resolve any ambiguity or vagueness in the Constitution. We did not have space in the book to provide a complete catalogue of these principles. But there is some evidence that one of these interpretative rules would construe constitutional provisions not to violate natural law unless they were clearly intended to do so. If there was sufficient evidence to support such an interpretive rule, that would be a significant result. It would mean that natural law would be reflected in constitutional provisions, even when they did not expressly reference natural law concepts. Such an argument would help Professor Erler find the natural law that he desires in the Constitution.
Stephen Presser: John McGinnis and Michael Rappaport have written a brilliant and exciting book, seeking to come up with a more convincing defense of originalism than any offered before. There is much of value in the book, but the core argument, that originalism is the best way to interpret the Constitution because it is consistent with the “supermajoritarian” aspects of the Constitution’s ratification and amendments is a little bit troubling. A Northwestern colleague of John’s and mine put his finger on the problem, perhaps, when he asked, at our faculty seminar considering the book, “What’s so super about supermajorities?” Something like this must be bothering Professor Erler as well. Erler clearly believes that there is something about the Constitution that transcends mere procedures, even supermajoritarian ones. For Erler, our constitutional experiment was about forming a government consistent with the principles of natural law articulated in the Declaration of Independence, a natural law which, Erler quite properly explains, comes, ultimately, from Nature’s God.
I’m with Erler on this, and, if we’re going to be originalists in the sense of wanting to know what some of our Constitution’s contemporaries thought about this question about the necessary substantive content of any Constitution, I’ve always thought a strong case could be built that the framers understood that there are, indeed, certain principles of natural law, principles that we might describe as “supra-Constitutional” checks on the making of any Constitution. These ideas show up in framing-era discussions of “republican” government, most notably in two great judicial opinions, one by Samuel Chase in Calder v. Bull, and one by the great Jeffersonian, Spencer Roane, in Currie’s Administrator (4 H&M 315 [Va. 1809]). The two of them were ruminating on the “Great Principles of Republican Governments,” the sort of things that barred legislatures from certain acts, among them (as Chase enumerated them), making someone judge and party is his own case, making something a crime which was not when the particular acts were committed, and taking A’s property and giving it to B without compensation.
What these three behaviors inconsistent with republican government have in common, I think, is that they are all targeted at essentially arbitrary behavior by lawmakers. It is this restraint of arbitrary governmental behavior that lies at the heart of Constitutionalism and republican government. As James Madison explained in the famous Federalist 51, if men were angels no government would be necessary, and if men were to be governed by angels no restraints on government would be necessary, but “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Madison then suggested that the proposed document’s separation of powers, dual sovereignty (federalism), and checks and balances (including judicial review) were the desirable means of obliging the government to control itself.
These devices in the proposed federal Constitution were said by the authors of The Federalist to be recent discoveries in the new science of politics, contributed by titans such as Montesquieu, and all were a means of restraining arbitrary power. There are, of course, other things a “good” Constitution should do, including at least encouraging economic progress, protecting private property and persons, and securing other basic rights such as religion, speech, and press, but carving out a sphere for human flourishing immune from the intrusions of government—freeing humankind from the effects of arbitrary governmental power—is what the Constitution always has been about, and quite possibly it is correct to imply, as I believe Professor Erler does, that this is a principle based in the framers’ conception of natural law.
The strength of originalism, as practiced by such modern masters as Justices Scalia and Thomas, is that they use the doctrine as a tool to suggest the illegitimacy of judges making law, because that is the very definition—for Montesquieu, Hamilton, Madison, and Jay—of arbitrary power. Constitutional Amendments, as McGinnis and Rappaport suggest, ought to be the means of changing the meaning of the Constitution, but, perhaps the principle of not permitting arbitrary power ought to be regarded as trumping some amending powers, and thus, trumping the activity of even supermajorities, because if it does not, there is an end to constitutionalism and republican government. Both of these notions, constitutionalism and republican government, I think, have always presumed certain substantive features, and, as Erler suggests, are about more than mere procedures. In an era when the United States Supreme Court, in NFIB v. Sibelius has all but obliterated any restraints on the arbitrary power of the federal government, and, for all practical purposes, nullified the 10th Amendment; it is crucial that we seek to remember the reasons we have a Constitution, and how it ought to be interpreted. I think that McGinnis and Rappaport are correct that originalism is the right constitutional hermeneutics, and I think that Erler is correct that originalism ought to include a recognition of the framers’ belief that there were certain good substantive goals for which the Constitution must be employed, and further that these goals are founded in appreciation of the Laws of Nature and of Nature’s God.
Edward Erler: Let me deal first with a trivial issue: The McGinnis and Rappaport claim that I mischaracterize their position by implying that they believe that “whatever a supermajority of the nation enacts, based on its own preferences, is a good constitution. This is not true,” they assert. “We make clear that we believe that a good constitution incorporates the core principles of the liberal tradition.” In the second paragraph of the published review I quote a sentence from Originalism and the Good Constitution where the authors make that exact point. Hardly a mischaracterization, I should think, to quote the authors’ own words!
Nothing in the authors’ response to my review has inclined me to change my view that Original Intent and the Good Constitution has nothing to do with original intent or the good constitution. Their original intent analysis finds that the only valuable feature of the Constitution is Article V, which allows amendments by supermajorities. The only permanent value of the Constitution therefore is that it provides a process for change—but even the supermajoritarian amendment process can be amended, so there is actually nothing of permanent value in the Constitution. As for “the core principles of the liberal tradition” which are most likely to be served by the supermajoritarian amendment process, these turn out to be nothing more than the main elements of the welfare state. While eschewing “contestable questions of goodness,” the authors do take a “normative approach” that they call “welfare consequentialist” or a “modern version of utilitarianism.” This “normative approach” “holds that the morally correct act is the one that produces the greatest welfare for the people” and the “best constitution is the one that produces the greatest welfare for the people of the nation”—“those rules and institutions that maximize the satisfaction of preferences.” Our authors merely state their position without defending it, no doubt in accordance with their intention to avoid contestable questions. Thus there is nothing valuable in the origins to conserve and the vaunted supermajoritarian amendment process inevitably leads it seems to a super-welfare state, not a regime of liberty. This is why I said that conservative original intent jurisprudence was at a dead end.
Our authors ultimately reveal that their work is inspired, not by the American Founders, but by Edmund Burke. Their claim is that their originalist understanding of the Constitution “translates Burke’s great insight into the most effective legal mechanism for the enduring governance of a flourishing society.” Burke, of course, gives no weight to founding principles or to original intent, only to prescriptive law that has been sanctified by long use. Government is not bound by principled limits, only long-continued practice. In accordance, our authors do their best to ignore or downplay—and even distort—founding principles by subsuming questions of principles to questions of process—the only thing of enduring value in the Constitution is the amending process, although the authors steadfastly claim that the liberal state which results from the amendment process is substantive. But the authors assiduously avoid any discussion of the substance of the liberal state, allowing the process to be the guarantee of the substance. We might describe this simply as process as substance!
The founders were not Burkeans or even proto-Burkeans; they believed their handiwork was unprecedented and revolutionary; it was a break with tradition and was not sanctified by long use or prescription. They found the basis of political society, not in historical prescription, but in natural right—the rights of human nature. Our authors think this is the political philosophy that I wish to impose on the founders, but the evidence is beyond dispute that the founders believed that “the laws of nature and of nature’s God” provided the true and permanent principles of legitimate government. And these principles were grounded in the first principle of human nature, the self-evident truth that “all men are created equal.” I quoted Federalist 43 in my review which refers to the Declaration as the foundation of the Constitution. I could have quoted a multitude of other sources. For the framers the principles of natural right were permanent, not subject to evolution or historical progress; they were not “values” or mere preferences, but permanent principles.
We have come to believe today that reason cannot decide between competing values, that values are simply idiosyncratic preferences. This assumption has banished reason from the universe of political discourse—and this is undoubtedly at the bottom of our authors’ decision not to contest “questions of what constitutes goodness.” The reigning orthodoxy is that value questions are incapable of resolution and hence should be avoided. Best to assume that liberal regimes are good because they are open to all “values” and real choices between contestable values are therefore unnecessary; they can be decided by process. But the fact that the welfare state elevates the welfare of the community over the rights and liberties of individuals is a “value question” that cannot be resolved be relegating it to the realm of “process.” This “value judgment” is deemed correct by our authors because it is part of “welfare consequentialism”—a “contested question of goodness” they refuse to defend. But everyone can see that this value judgment is badly in need of principled discussion and reasoned choice.
Our authors—like all present-day originalists are dominated by “historical consciousness.” The insight of the historical school was that all thought is relative to the historical epoch that produced it and has no relevance to the circumstances of any other historical epoch. We now know that the ideas of one historical epoch are merely the expression of the regnant opinions and ideology of the time, and have no application to circumstances of any other historical era. We know today that the ideas that the framers relied on, the “laws of nature and of nature’s God” and the other elements of 18th-century “ideology” that animated them, have been rendered obsolete by the progress of history. The idea that there is any such thing as a permanent human nature—or principles derived from human nature—has been refuted by evolutionary science. One wonders, however, how an idea that was created during a particular historical epoch claiming that all thought is valid only for the historical epoch that produced it can claim universal validity. The inventors of the historical school do not seem to have been any more interested in contestable questions than our authors; it is a matter of passing wonder that their unexamined thought has become the unquestioned orthodoxy among both liberals and conservatives.
According to our authors, Article V demonstrates that the framers believed that each generation should be allowed to contribute to the making of fundamental law by introducing its own values and preferences into the Constitution. In this way, no generation will be ruled by the “dead hand” of the past. That the founders would not have spoken in terms of “values,” seems to be a matter of no consequence to our authors, since values and principles are convertible term for them, neither having objective grounds in reason. The framers did indeed believe that the principles animating the Constitution were permanent and ought not to be changed; these principles were not simply values or preferences but the objective dictates of reason and nature.
The Constitution was designed to put the principles of the Declaration into practice. The Constitution would indeed need amendment from time to time as circumstances changed and imperfections discovered. The principles would remain the same, but changing circumstances would demand different applications and here prudence would be the guide. Some constitutional imperfections were known from the beginning and others would reveal themselves with experience. An imperfection in the Constitution from the beginning was that it countenanced the continued existence of slavery. Insofar as it did so it was only an incomplete expression of the Declaration’s principles. But, as in all things political, it is almost always impossible to translate principles directly into practice. The protections for slavery in the Constitution were necessary to purchase the support of the slave-holding states for a strong national government. And as the most perceptive Federalists understood, without a strong national government the prospects of ever being able to end slavery were remote. The compromises were justified, of course, only to the extent that they were in fact necessary and only to the extent that they provided a foundation for eventual emancipation. The Constitution’s grounding in the principles of the Declaration made the eventual abolition of slavery a moral imperative. It is important to note that the clauses in the Constitution dealing with slavery are compromises, not principles. And it is only possible to distinguish the principles of the Constitution from its compromises by reference to the Declaration.
Abraham Lincoln said that the Constitution had put slavery on the road to ultimate extinction because it treated slavery as wrong in principle to be tolerated only as a “necessary evil.” Freedom was the rule, he said, and slavery the exception. As soon as it was politically expedient the Constitution contemplated the abolition of slavery. But this meant that the Constitution must always be understood in light of the principles of the Declaration. Lincoln argued that that “public mind” was convinced that slavery was in fact on the road to extinction. Here we have Lincoln’s testimony that the public mind, over the generations, had been shaped by the principles of the Declaration. In the 1850s there was a concerted effort to overturn that consensus, first by Stephen A. Douglas, author of the Kansas-Nebraska Act, and then by Chief Justice Roger Taney in Dred Scott v. Sanford. Lincoln’s reply to Taney is a masterpiece of political and philosophic rhetoric:
Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality one with another.
As Lincoln deftly points out Taney’s argument “proves” that the Declaration did not include whites by the mere fact that all whites were not equalized all at once!
Lincoln continued that the authors of the Declaration
defined with tolerable distinctness, in what respects they did consider all men created equal—equal in “certain unalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this meant. They did not mean to assert the obvious untruth, that all men then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They mean simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.
Taney’s argument wholly misunderstood the founders’ view of statesmanship. The founders, Lincoln argued, had no power to emancipate the slaves all at once. They could have done so only in opposition to the consent of the governed, thus purchasing the freedom of the slaves at the price of subjecting the nation to tyranny. Lincoln argued that the “abstract truth” at the core of the Declaration served no practical purpose in effectuating independence from Great Britain. In fact, Lincoln says, it was not placed in the Declaration for that reason, but for future use, as a “standard maxim” or a goal to be attained. Once it was accepted, the Declaration placed moral demands on all Americans. How those demands were to be met and at what speed had to be determined by wise statesmen, and Lincoln’s principle of statesmanship was that of the founders: eliminate as much evil as possible while it is possible without destroying the basis in public opinion from which further evil could be eliminated. Statesmanship in a regime based on the consent of the governed must always operate within the constraints of public opinion at the same time that it attempts to lead public opinion ever closer to the fulfillment of its highest aspirations.
Taney, however, had held in Dred Scott that “the right of property in a slave is distinctly and expressly affirmed in the Constitution.” Lincoln had utterly refuted Taney’s pretentions by demonstrating that slavery could hardly be “distinctly and expressly affirmed” if the word “slave” or “slavery” never appears in the Constitution, nor the word “property” ever used in connection with any of the circumlocutions used for slavery. Lincoln avers that these circumlocutions (“three fifths of all other persons”; “the migration or importation of such persons”; “person held to service or labor”) were “employed on purpose to exclude from the Constitution the idea that there could be property in man. To show all this is easy and certain.” But Taney’s ruling gave the slave-holding states for the first time a constitutional justification for secession endorsed by the Supreme Court.
Our authors argue that it “is clearly not the case” that the Reconstruction amendments were an attempt to complete the regime of the founding by extending the reach the principles of the Declaration. Au contraire, professors! On the day he was elected Speaker of the House in 1863, Schulyer Colfax announced to the members that the goal of the 39th Congress would be to “enact legislation…on such a basis of enduring justice as will guarantee all necessary safeguards to the people, and afford, what…the Declaration of Independence proclaims is the chief object of government—the protection to all men in their inalienable rights.” Consider what Thaddeus Stevens, a prominent member of the Joint Committee on Reconstruction, said on May 8, 1866:
It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.
Similar statements could be multiplied a hundred-fold from the time of the Reconstruction debates; the frequent invocation of the Declaration, I say, leaves no possible doubt that the ruling paradigm for the amendments was the completion of the regime of the founding, and it is tempting to add that the omnipresent spirit of Lincoln supervened at crucial moments in the debates.
In explaining why the word “slave” and “slavery” were never used in the Constitution, Frederick Douglass, the great abolitionist leader and former slave, explained that the compromises dealing with slavery in the Constitution were like scaffolding used to prop up a building during construction. Once the building was complete, Douglass said, the scaffolding was torn down and no one ever remembered that the building needed support during construction. The building that was the Constitution was completed, Douglass argued, with the Reconstruction amendments when it came into formal harmony with the principles of the Declaration! The scaffolding—those compromises in the Constitution protecting slavery—were now gone. And since the words “slave” and “slavery” were never in the Constitution there is no reminder that that affront to the principles of human nature was ever there. The framers knew slavery was destined to disappear and they wanted no trace of it to remain. The Reconstruction amendments were passed—indeed a Civil War was fought!—not to reflect the changing values and preferences of a new generation but to fulfill the moral imperative entrenched in the Declaration of Independence by the founding generation.
McGinnis and Rappaport: We have to admit that this exchange with Professor Erler has been not a little frustrating. In our first piece reacting to his review, we complained that Erler had read our book in an uncharitable way to promote his own political position and had ignored the contributions our book could make to someone with his own position. Sadly, Erler’s reply only repeats the same mistakes. In fact, his new essay is largely a repetition of the points in his initial review.
Let’s start with Erler’s first paragraph where he believes he has a strong point to make:
Let me deal first with a trivial issue: The McGinnis and Rappaport claim that I mischaracterize their position by implying that they believe that “whatever a supermajority of the nation enacts, based on its own preferences, is a good constitution. This is not true,” they assert. “We make clear that we believe that a good constitution incorporates the core principles of the liberal tradition.” In the second paragraph of the published review I quote a sentence from Originalism and the Good Constitution where the authors make that exact point. Hardly a mischaracterization, I should think, to quote the authors’ own words!
Yes, we did notice that Erler quoted our words, but he then ignored these words in the remainder of his review, treating us as if we cared only about the constitutional changes that Article V allows.
As if we to prove our point, Erler repeats this tactic in his new entry. In the very next two sentences, he writes:
Nothing in the authors’ response to my review has inclined me to change my view that Original Intent and the Good Constitution [sadly Erler even gets the name of our book wrong] has nothing to do with original intent or the good constitution. Their original intent analysis finds that the only valuable feature of the Constitution is Article V, which allows amendments by supermajorities. (Emphasis added.)
If Erler recognizes that we believe a good constitution incorporates the core principles of the liberal tradition, then how can he state that we believe the only valuable feature of the Constitution is the amendment process? Apparently, it is not only our writing that Erler does not read carefully!
Unfortunately, this is far from the only example where he misreads our text and then criticizes the resulting straw man. Thus, in the next paragraph, Erler writes, “Our authors ultimately reveal that their work is inspired not by the American Founders but by Edmund Burke.” While Erler had made a similar claim in his initial review, it is entirely of his own imagination. We don’t mention Burke until the last paragraph of the book—an odd way to treat him if he were the inspiration for our work. Let’s be clear: the book does not attempt to give a Burkean interpretation of the Constitution. Rather, we merely note that the Burke’s notion of a contract between the past, the present, and the future captures an important part of the constitutional amendment process.
Finally, Erler, as in his initial review, attempts to defend his claim that the ending of slavery was consistent with the original Constitution. He writes:
Our authors argue that it “is clearly not the case” that the Reconstruction amendments were an attempt to complete the regime of the founding by extending the reach the principles of the Declaration. Au contraire, professors! On the day he was elected Speaker of the House in 1863, Schulyer Colfax announced to the members that the goal of the 39th Congress would be to “enact legislation…on such a basis of enduring justice as will guarantee all necessary safeguards to the people, and afford, what…the Declaration of Independence proclaims is the chief object of government—the protection to all men in their inalienable rights.”
Erler’s response shows his misunderstanding. The question is not whether the Reconstruction Congress attempted at times to justify their actions based on the Declaration of Independence. Nor whether people in these Congresses genuinely believed they were completing the project of the original Constitution. People during the New Deal claimed to be completing or reviving the constitutional understandings of the Marshall Court. That they justified their actions in those terms and even believed their justifications does not make them true.
We wrote that “The original Constitution permitted slavery and the ending of slavery reflected the views of a different generation, transformed by the experience of the Civil War.” This seems to us undeniable. Although many people in the North at the time of the Constitution may have opposed slavery, a significant percentage of those in the South supported it. And even in the North, prior to the Civil War there were relatively few who believed that slavery should be ended in the quick manner accomplished by the 13th Amendment. The Reconstruction Amendments reflected a new consensus and no amount of quotations to Reconstruction politicians can change that.
Concerning the other participant in this discussion, we are grateful to Stephen Presser for his kind words about our book. But we nevertheless believe that there is a fundamental contradiction at the heart of his comments. He praises originalism but suggests that some constitutional amendments should be ruled illegal because they violate natural law. But he never shows how this position can be squared with the text of the Constitution, which provides no limitations on the scope of amendment power except to say that it cannot change equal representation in the Senate.
Presser does note that some jurists at the time spoke favorably of natural law and that other provisions of the Constitution reflect an order consistent with natural law, but that seems a very undeveloped argument even for the claim that ambiguity and vagueness in the Constitution should be interpreted according to natural law, let alone that natural law principles can be enforced without any textual warrant. And Article V is neither ambiguous nor vague in the general scope it provides for constitutional change.
The oddness of Presser’s position is exacerbated by his own reason for adopting originalism—constraining the judiciary. Permitting judges to negate constitutional amendments by reference to unwritten law is the opposite of judicial constraint and is ultimately a recipe for judicial supremacy. Larry Tribe once endorsed the idea that constitutional amendments might be illegal if they conflicted with fundamental principles of right. His view was widely criticized, but at least he did not claim to be an originalist.
Nevertheless, we think Presser’s response is far superior to that of Erler, because it recognizes that Article V on its face is in tension with the idea that American constitutionalism is to be enforced by applying a static natural law that was discovered once and for all at the founding. Presser’s effort to reconcile the amendment process with that conception does not in our view succeed, but at least it attempts to deal with the empirical reality of the Constitution we have.
Presser: And I am grateful to John McGinnis and Michael Rappaport for their gracious words. There is a book out there waiting to be written reconciling natural law with originalism, Article V, and the intentions of the framers, but alas, I’m not going to have the time to write it. As I understand what Samuel Chase was up to in Calder v. Bull and what Spencer Roane was doing in Currie’s Admin. v. Mutual Assurance Soc. it was to articulate a self-evident set of natural law restraints on what any government—with or without a written Constitution—could do. As Chase indicated, this included (but may not have been limited to) taking one person’s property and giving it to another without compensation, creating ex post facto laws, and making someone judge and party in his own case. Both Chase and Roane were articulating restraints on legislatures, but restraints dictated not by them but by what they thought was our natural law tradition. They didn’t clearly articulate limits to that tradition, but such limits would exist in the great natural law works by the civilians, including, for example, Vattel, Grotius, Puffendorf, and Bynkershoek, whose works are frequently cited in the early opinions of the federal judges. Judicial review applying natural law would, pursuant to that authority, be extremely limited, but it would exist. History and existing scholarship at the time of the framing would have provided the limits that McGinnis and Rappaport seek, and would have, for the framers, provided a further restraint on the arbitrary power of all government, which, I believe, ought to be what originalists are after. The Liberty Fund has now issued a multi-volume series of English translations on natural law, including these four great civilians and others, under the editorship of Knud Haakonssen, and someday some ambitious scholar may provide the detail that I can’t now give McGinnis and Rappaport and the rest of the academy’s originalists.
Even so, if that historical theory of natural law restraints is ever articulated, if that notion of a supra-constitutional restraints as I have previously called them, is ever implemented, it will not provide judicial license of a kind that McGinnis and Rappaport might fear from a Justice Tribe. (I discussed this question in “Should a Supreme Court Justice Apply Natural Law?: Lessons from the Earliest Federal Judges,” 5 Benchmark 103 .) It would be designed, in accordance with what were then thought to be divinely-inspired dictates against arbitrary power, to accomplish the kind of Burkean goals (and Burke was a believer in natural law, after all) that McGinnis and Rappaport seek.
Erler: McGinnis and Rappaport rightly point out that they don’t mention Burke until the last page of Originalism and the Good Constitution. But it is evident that Burke is present throughout the whole of the book and this is what prevents them from taking the origins of the American regime seriously. In a study that purports to engage in “originalism” this seems odd, not to say incomprehensible.
It would only seem natural that a book on “originalism” would attempt to recover (or uncover) something of the origins. But our authors fail in their quest for “originalism” because they are convinced that the framers had no principled or philosophic justification for their work, or none at least that would be relevant for us today. Or perhaps their overwhelming desire to avoid “contestable assertions of what constitutes goodness” leads them to shy away from what they denominate “thick theory.” Why, then, bother with originalism? I have already detailed how the founders expressed in exquisite detail their reliance on the principles of the Declaration of Independence in framing the Constitution. Why not accept the framers’ originalism as the standard? I do not believe that McGinnis and Rappaport have adequately explained why a new theory is necessary—especially one that the framers would have rejected.
I fail to see how Originalism and the Good Constitution could make any kind of contribution to my “own political position,” because I endeavor to make my position that of the framers. McGinnis and Rappaport, however, reject what is essential in the founding—its political philosophy, a philosophy, as the framers repeatedly asserted, that was expressed in the Declaration. Any account of the founding—any theory of “originalism” or the “good constitution” that ignores those principles cannot come to grips with what is important (and, yes, what is exceptional) in the American regime. Under the originalism of McGinnis and Rappaport, the “values” of the Constitution should be updated by each generation on an equal basis with every other generation. But, of course, supermajority rules for amending the Constitution still leave the founders with a “first-mover advantage.” If “originalism” treats each generation as equal and equally justified in adding its own evolved “values” to the Constitution, why leave the founders with such an unfair advantage? “While the framers may have had more input into the Constitution,” our authors aver, “later generations have other advantages.”
We inherit the benefits of their system—a Constitution that is stable, desirable, and strongly supported by the nation. In fact, it seems evident that we are better off than the Framers were from this arrangement. After all, if we wanted to place ourselves in their position, we could simply junk the Constitution and draft a new one. But we do not do so; indeed, few of even our most adventurous thinkers entertain the prospect. We prefer the benefits of being constrained by the past.
This is a perfectly expressed Burkean concept appearing, not at the end of the book, but at its midpoint. Perhaps the authors didn’t recognize the influence of Burke in this passage. In any case, it is a far cry from the American Founding, whose architects emphatically believed that the founding was grounded in the permanent principles of natural right, not mere “values” to be revised by every generation. As Burkeans, McGinnis and Rappaport prefer to emphasize what they imagine the framers inherited from the Anglo-American legal tradition, rather than what they learned from the revolutionary principles of natural right.
Throughout Originalism McGinnis and Rappaport suggest (although there is some equivocation) that the Constitution was adopted by a supermajoritarian process. It was not. By its explicit terms it required unanimous consent. If the people of any state refused to ratify the new Constitution, the people of that state would not be a part of the newly constituted Union. By the terms of the Constitution the ratification of at least nine states was required to establish the Union, but the new Constitution would only be binding upon the people of those nine states. Unanimous consent was required by the principles of the Declaration; it was an indefeasible requirement ultimately flowing from what the framers understood as the “first principle of human nature” that “all men are created equal” and that government understood as social compact must rest on unanimous consent.
Originalism doesn’t really play much of a role in Originalism and the Good Constitution. As I pointed out in my last reply, in ignoring the Declaration, the authors are incapable of discerning the principles of the Constitution from its compromises. In focusing on the “supermajoritarian political process” as the primary source of the Constitution’s “greatness,” our authors ignore what the framers say about the Constitution. In other words, McGinnis and Rappaport claim to understand the Constitution better than the framers and founders. And this bold claim carries over into their analysis of the Reconstruction amendments. The architects of the Reconstruction amendments said with great frequency that their purpose was to complete the regime of the founding. Our authors know better; their theory of originalism exposes the self-delusions of those who framed and debated the amendments. Never mind that the theory of originalism espoused by our authors would have been rejected by both the framers of the Constitution and the Reconstruction amendments. Our authors insist that their theory is a more accurate depiction of what happened in the great post-Civil War constitutional drama than the explanations of those who participated in and orchestrated the drama. According to McGinnis and Rappaport, what really happened was that the American people suddenly found themselves thrust behind a “veil of ignorance” (otherwise known as the Civil War) and came to a new consensus about America’s constitutional future. The framers of the Reconstruction amendments thought (and said over and over again) that their work was the completion of the consensus that formed the founding. McGinnis and Rappaport know better.
I think the “originalism” of McGinnis and Rappaport might best be described as “living constitutionalism” with a bad conscience. They want the Constitution to adapt to changing “values” but at the same time retain some connection to the Constitution, however tenuous and purely formal the connection might be. What substance that remains will be supplied by the supermajoritarian amendment process itself, which will “most likely” insure that the evolving “values” are compatible with liberal democracy. These “value” choices will represent a consensus and thus provide the kind of stability that “tends to protect minorities, and accords with the preferences of the people.”
But the kind of liberal democracy that is envisioned by McGinnis and Rappaport is not the one contemplated by the originators of America’s liberal democracy. The authors employ what they call “welfare consequentialism” which is, they say, “a modern version of utilitarianism, which holds that the morally correct act is the one that produces the greatest welfare for the people.” The welfare state—or the administrative state—of our authors has more in common with John Rawls than it does with the founders and the Constitution they devised to secure rights and liberties. The welfare state—the legacy of Progressivism’s attempt to supplant the principles of the founding—elevates the welfare of the community over the rights of individuals. Clearly the administrative state with its all-pervasive and intrusive government has little in common with the limited constitutional government devised by the framers—surely anyone can see that the welfare state is connected to the Constitution in only the most tenuous ways and many of it more progressive advocates openly speak of the fact that the administrative state has, for all intents and purposes, entered a “post-constitutional era.” Evolving “values” have indeed transformed the American regime into one that would no longer be recognized by the framers—there is nothing (or very little) of the origins that survive.
The idea of “welfare consequentialism” would have sounded odd to the founders. That any kind of “utilitarianism”—modern or otherwise—could have provided a “morally correct” foundation for civil society would have been rejected by the framers as frivolous and insubstantial. The ultimate goal of political community for the founders was justice. As James Madison remarked in the famous passage in Federalist No. 51: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” It almost goes without saying that welfare and justice are not the same thing. Whether the evolution of “values” from justice to “welfare consequentialism” has in fact produced a good Constitution the authors cannot say because that would involve them in “contestable assertions of what constitutes goodness.” They do claim, however, that the evolution will “likely” result in a good Constitution if it is adopted by the “supermajoritarian” amendment process.
But as long as our authors are unwilling to confront questions of goodness head-on they will never be able to make real claims about the Constitution’s goodness in the way the framers were able to. Our authors wish to avoid questions of goodness as if somehow politics and the genuine questions that inevitably arise from political life can be excluded or reduced to mere “value preferences.” We cannot delude ourselves into thinking that we can ignore contested questions by substituting process for substance. This delusion will only postpone but never allow us to avoid contestable questions of goodness, and if the delusion persists the questions may ultimately be forgotten.
Addendum: McGinnis and Rappaport chastise me for supposedly mistaking the title of their book. Apparently they didn't get the joke, although other readers did. I apologize for my feeble attempt at humor; it was entirely out of place.