Noah Feldman on the Insanity of Originalism

Mike Ramsey recently linked to Noah Feldman’s short essay about the declining influence of the United States Constitution on the rest of the world. Mike noted that Feldman claimed that judicial review was somehow invented by John Marshall in Marbury v. Madison.  While Mike criticizes Feldman, I would go further and say that scholars today generally recognize that judicial review was a relatively common practice prior to the Constitution, that the framers expected it to be employed, and that the constitutional text contemplates it.  To mention just one article, Bill Treanor (no conservative and not an originalist, at least of the standard variety) notes that prior to the Constitution, there were at least “thirty-one cases in which a statute was invalidated and seven more in which, although the statute was upheld, one judge concluded that the statute was unconstitutional.”  He concludes that Marbury built on a firm foundation of judicial review.

Another part of Feldman’s essay is even more worthy of note.  Feldman writes:

The truth is that no sane constitution-drafters would want the future court of their country to spend its time arguing about what they really meant — or even about public perception of what they meant. Debates about what the Constitution originally meant become proxies for arguments about what the Constitution ought to mean.

Perhaps Feldman is aware that James Madison, father of the Constitution, wrote that:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.  In that sense alone it is the legitimate Constitution.  And if that be not the guide in expounding it, there can be no security for a consistent and stable . . . exercise of its powers.

I would add that the great majority of interpretive approaches of the Framers’ generation, including the competing approaches of Hamilton and Jefferson, were some of type of originalism.  One might infer that Feldman believes that the Framers were not sane and that might then explain why Feldman recommends that other countries not follow the document that the Framers drafted.
Of course, Feldman has another point here.  He believes that people often use original meaning as proxies for their political views.  While he has a point here, I don’t think this is quite right. Instead, I believe the more accurate way to put it is that people with different political views often end up concluding that the original meaning has different meanings.  That is not necessarily because they are viewing the evidence in bad faith, but they are unconsciously influenced by their political biases.
While I don’t think we will ever get rid of differing views of the Constitution’s meaning, I do believe that as more information about the original meaning is produced with the growth of originalism, more agreement will result.  I have certainly changed my mind about several important constitutional issues based on the evidence and I expect to continue to do so.  Hugo Black, who Feldman cites as an example of a liberal who used originalism to generate liberal results, was an originalist of sorts, but he was writing at a time when our knowledge about the Framing had been impoverished, in part by the New Deal.  Even then, he produced several conservative results based on originalism, such as his dissent in Griswold and his view that the Contract Clause should be enforced strictly.  While originalism may never work itself pure, it is likely to generate more agreement with further knowledge.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. says

    Very interesting dsisusicon of Brown. I have been thinking a lot about Brown recently due to the passage of Proposition 8 in California. I am sure you are all familiar with that Proposition which defines marriage as solely between a man and a woman. I have been trying to figure out recently what it is about race and gender such that triggers the highest level of judicial scrutiny and constitutional protection. Is it, as mentioned in Brown, their accidental nature, i.e. something over which the individual has no control? If so, then it seems that any successful defense of gay marriage would have to prove that homosexual Americans have no more choice in their sexual orientation than they do over the color of their skin.

    • says

      Under the usual analysis of hgtris, if a person has a right then someone else must have a corresponding duty.If I have a right to free speech, who else has what duty?If I have a right to worship as I please, who else has what duty?If I have a right to keep my papers confidential, who else has what duty?If I have a right to trial by jury, the jury may have a duty to serve – but only because the state aquires its power from the consent of the governed.Whither my right to self-defense? and the means thereto? Surely I have such right, and no other has a duty to support it!if the purpose of the right is to reinforce the power of state government.”Right” to reinforce the power (to wit: existence) of state government? How could such a right exist without the individual also having a right to reinforce his own power to merely exist?

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