Thick Originalism as a Constraint on Ideology

My last post described the most important recent trend in originalism—the thickening of meaning by reference to the pervasiveness of the Constitution’s legal background. Legal rules at the time of the Framing help clarify its ambiguities and make more precise its occasional surface vagueness. The most important implication of the thickening of originalism is to challenge ideologically comprehensive originalism—the use of an ostensibly originalist vision of Constitution to suggest that it almost invariably favors one ideology.

By putting the Constitution’s legal background front and center, thick originalism makes a comprehensive victory for any ideology less likely for three reasons. First, the legal background is a complex one given by the tradition of law, including the common law and in some cases the law of nations over centuries. This law is very unlikely to line up with any contemporary ideology, not least because of complexity and its accretion in a past even more distant than that of the Framing itself.

Second, in one sense the common law background of the Constitution is distinct from and in opposition to the Enlightenment thinking that gave rise to modern ideology. Bernard Bailyn, the famous historian of the ideas behind the American Revolution once stated: “English law—as authority,  as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.”

The Constitution itself was product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. And  the common law reflects a kind of winding historicity whereas Enlightenment thinking derives political structures from the logical implications of core axioms. The first is much less amenable to a comprehensive ideology than the second. And indeed two recent articles that provide examples of considering legal rules to resolve constitutional meaning and were discussed in my last post, Preemption by Caleb Nelson and The Constitution and the Law of Nations  by Anthony Bellia and Brad Clark, take positions that are quite nuanced and do not fit with the traditional conservative, libertarian or left-liberal constitutional views on the subject of either preemption or customary international law.

Third, by clarifying language that is otherwise ambiguous or vague, thickening orignalism gives less room for scholars to move ambiguity and vagueness toward their preferred ideology. Because meaning is better tied down, spinning becomes less possible. Mike Rappaport and I hope that will be one of the legacies of our theory of original methods originalism described in our recent book, Originalism and the Good Constitution.

Another trend that will reinforce these advantages is the rise of specialists over generalists in constitutional scholarship, as the legal academy generally becomes more specialized. A generalist can relatively easily organize the words of the Constitution by imposing some external presumption on them—be it a presumption in favor of democracy or liberty.  But to understand the complex legal background behind particular phrases, like the “non obstante” clause, takes very substantial work, in some cases years of study.

For instance, I saw this tension between generalists and specialists in The Classical Liberal Constitution by Richard Epstein, a classic generalist as well as a classical liberal. While it was a substantive and stimulating book, in many instances it did not consider the substantial scholarship on particular clauses written by specialists, most notably on the Second Amendment. But originalism will be credible only if it makes use of all the knowledge that specialists are generating.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. Kevin R. Hardwick says

    John,

    This is a thoughtful piece, and one I hope many others will read. That said, I urge you to give some consideration to immediate, short term political compromise as one important source of meaning. Any originalism worth its salt must take short term instrumental thinking into account. The best work I have read that spot lights political dynamic as a source of original meaning is David Brian Robertson, THE ORIGINAL COMPROMISE: WHAT THE CONSTITUTION’S FRAMERS WERE REALLY THINKING (Oxford, 2013), in my view the best treatment of the Philadelphia Convention in print, and one of the most important works of constitutional history written in the last twenty years.

    I am reminded, in reading it, of Conrad. Russell’s brilliant rebuttal of Lawrence Stone’s interpretation of the English civil wars. Where Stone emphasized long term structural causation, Russell demonstrated that much more immediate, short term, and instrumental concerns explained the causation of the wars, and the constitutional issues bound up in them, much more effectively.

    Here, the emphasis on long term causation takes the forms of intellectual and legal structures, eg. the common law, or the law of nations, or the enlightenment, or neo classicism. Scholars as diverse as Bailyn, Edling, Hendrickson, Reid, and Greene all tend to emphasize the importance of intellectual traditions in determining the meaning of the constitution.

    Robertson cogently reminds us of the importance of politics, which uses available intellectual resources to craft arguments to secure short term goals. This is not to say that those intellectual resources do not matter, nor is it to suggest that the framers at the Philadelphia convention lacked long term goals. But it is to say that we can not understand what they did, or why they did it, or what they thought it meant, if we do not give proper emphasis to short term instrumental calculations.

    All best wishes,
    Kevin

    • gabe says

      Kevin; again, well said!

      “This is not to say that those intellectual resources do not matter, nor is it to suggest that the framers at the Philadelphia convention lacked long term goals. But it is to say that we can not understand what they did, or why they did it, or what they thought it meant, if we do not give proper emphasis to short term instrumental calculations.”

      This statement should be mandatory reading for all law students and professors.

      BTW: I must stop reading your comments. I am going to go broke buying the books you recommend.

      take care
      gabe

      • Kevin R. Hardwick says

        Gabe,

        I probably lavished excessive praise on Robertson. Even so, I do think it an important and extremely useful book, and a valuable corrective to the tendency to privilege the analysis of long term intellectual traditions like the common law or the kinds of “great conversation” sources that political theorists (rightly!) love over shorter term political considerations.

        Robertson’s writing is uneven. But the introductory and concluding sections of each chapter convey his argument very well. Its solid stuff.

        I am glad that you are finding my assessments of the literature useful!

        Well wishes,
        Kevin

  2. says

    “(T)he thickening of originalism is to challenge ideologically comprehensive originalism—the use of an ostensibly originalist vision of Constitution to suggest that it almost invariably favors one ideology… By putting the Constitution’s legal background front and center, thick originalism makes a comprehensive victory for any ideology less likely…” I have a problem w/both ideologically versions of “originalism”.
    In your previous essay blog you said, “First, whole clauses in the Constitution are NOT comprehensible without understanding a complex body of preexisting domestic law. I do not necessarily disagree w/this statement. Are you using ‘preexisting domestic law” as federal, State, or “inalienable”? Within your sentence you state “without understanding a complex body…” You also stated, “… (O)ne must look beyond word meanings to the interpretive rules that were customarily applied to such a document.” You did not address my question, “Would you please explain in detail “… beyond word meanings” — of the First Amendment’s Religious Clause – that is ‘prohibited law making by the federal government? I will, also, ask, you to address the following question, here: is the First Amendment Religious Clause a “complex body” to understand?
    Respectfully, John

  3. Richard S says

    Interesting to quote Bailyn. Did the five schools of thought he outlines at the start of Ideological Origins exist as separate things before he created them? In other words, I’m not sure that the top common lawyers of the day separated law from Enlightenment the way Bailyn says they did.

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