Show notes
This edition of Liberty Law Talk features a discussion with Lee Strang about his new book, Originalism’s Promise. Richard Reinsch: Our guest today is Lee Strang, author of Originalism’s Promise: A Natural Law Account of the American Constitution. Lee, what do you Originalists want? Lee Strang: What do Originalists want? I think it’s changed in some ways over the decades of modern Originalism’s revivals and through the 1970s, but some things have changed, some have remained the same. Some of the things that have changed is the end state towards which Originalists argue that Originalism leads. There’s been a flourishing of scholarship, especially since the late ’90s. Professor Barnett’s book coming out in the early 2000s about providing for the protection and establishment of natural rights. More recently, John McGinnis and Mike Rappaport’s book argues that Originalism leads towards good consequences. I think one of the things that you see in all of these different moves, all of these different normative accounts is that a reason or the reason why Originalism leads to these different state of affairs, and this is the consistent part over the years, is because it provides on balance and overall and systemically, a relatively determinate way to access the Constitution’s legal meaning and then to implement it over time. That has the kind of corollary that many Originalists, although not all, identify, which is that judges are able to identify and then follow, and then be criticized for not following the Constitution’s original meaning. I think there’s been some change over time, but I think the key insight that Originalism offers is that it allows Americans, and especially judicial officers, to see the Constitution as a legal document that’s judicially enforceable in a principled manner. Richard Reinsch: Let’s think more about the change within Originalism. When I was an undergraduate, when I was in law school, not that long ago and for some years after, I thought I knew pretty clearly what Originalism was, and I thought I knew pretty clearly who my opponents were. They were the living Constitutionalists, they were the Progressives, they were those for whom the text was an occasion for invention or construction for the development of new rights or the diminution of things clearly in the text. I thought, “Those are the people that I’m trying to defeat with an original meaning.” We could have a discussion and a debate amongst Originalists about what the meaning was of provisions and clauses in the text, but we all knew we were in the same enterprise. I no longer think that when I think about Originalists. Now in fact, and I don’t think I’m unique in that regard, it seems to me there are many camps and philosophies within Originalism. You write about those in your book. You write about even a Progressive Originalist at Yale Law School, Jack Balkin, and his school of Originalism jurisprudence, which is giving voice in some way to popular Constitutional movements. I mean, that’s a succinct description, but you can elaborate more on that. How do you see it? When I think about the Libertarian Originalists, and then of course, there’s original meaning, original intent. There seems to be always, though, politics lurking here. Even though Originalism claims, or I always took it to be a claim that we’re not about politics or an end. We’re about understanding the Constitution itself. Lee Strang: Yeah. Richard, that’s a great question. It’s one that I’ve been thinking about, especially since reading a chapter by Steve Smith, maybe four or five years ago in a collection that was called The Challenge of Originalism. Steve had a chapter in there titled, I think it was “Give Me That Old Time Originalism.” It had lots of theological and religious connotations and references in it as well. Basically, what he said was something similar to what you’re saying, that there’s the old-time Originalism, which was simple. Which had the connotation of being pure and consistent, relatively easy to identify, relatively easy to implement. Then now you have today, where you have a cacophony of people claiming the mantle of Originalism, but seeming to do things and have commitments that don’t seem to be consistent with each other. I think it’s a live issue with Originalism, to what extent is Originalism a coherent phenomenon, in a way that it at least appeared to be earlier? I guess I’ll tell you my current thoughts on that are, and I had to think this through as I working on the book. That the thing that has helped me evaluate the extent to which Originalism is a coherent phenomenon is both there’s a theoretical and then a practical part. The theoretical part comes from the concept of a focal case, which I take from John Finnis, inparticular, the beginning of his seminal book, Natural Law and Natural Rights. Then the other theoretical component is from Larry Solum, who’s identified what he describes as a number of core theses of Originalism. Finnis and the focal case idea is that both in the natural world and in the theoretical world, there are ways to describe phenomenon that are examples of the phenomenon, that in their most healthy, most excellent version. Then there’s marginal versions of that phenomenon. One example would be an oak tree. There’s hale, hearty, old acorn versions of oak trees, and then there’s the kind of scrawny marginal versions of it. That, I think, is a lot of what you’re describing, what I’m seeing as well. Then in the sense with what Larry has been describing, where Larry’s claim, which I think is accurate, maybe with one possible exception that I haven’t worked through yet, is that Originalists are united around two core theses. One is the fixation thesis and one is the contribution thesis. The fixation thesis is that Originalists argue that the Constitution’s meaning was fixed when the text was ratified. Then second, Originalists argue that officers implementing, following the Constitution, have to identify, have to follow the original meaning, and it has to contribute to the outcome of those lawmakers’ decisions. For judges, it has to contribute to the whole case. When you combine those two things together, I think what it suggests is that there continues to be a focal case of Originalism. When you think of the different versions of Originalism that are out there … You mentioned some. Original meaning, original method, original intent. All those folks are committed to both of those propositions. In practice, when you scan through the list of people who are self-described and widely recognized as Originalists … We talked about Randy Barnett and John McGinnis and Mike Rappaport. They also are committed to that second proposition, that the original meaning contributes to the outcome of judicial decisions. In fact, one of the things that makes Originalism so potentially challenging to non-Originalists and to American legal practice is, that for the most part, Originalists pretty robustly embrace the contribution thesis. Because, for example, Professor Barnett famously, or depending on other people’s perspective, infamously has argued that the Constitution’s original meaning should trump all non-Originalist precedent, and which could have, critics argue, a dramatic destabilizing effect. I think there is a lot of debate in Originalism. The debate is, typically, around what the focal case means, and how it plays out, outside the focal case, but it’s not about, whether there is… Richard Reinsch: A lot of people will say, “Focal case.” Be more concrete there. Lee Strang: The focal case is the fixation thesis and the contribution thesis, or I think Larry calls it hypothesis. For example, regardless of one’s stripe of Originalism, when you’re trying to decide, “How should NFIB vs Sibelius be decided?” Or, “How should Wickard vs Filburn have been decided under the Commerce Clause, Federal Commerce Clause power?” That all Originalists are committed to, “We follow the meaning as adopted in 1789, and then judges should follow that when they’re deciding Wickard or NFIB vs Sibellius.” That’s an example of focal case. Then there’s, I guess things outside the focal case or a debate about what or shouldn’t be in the focal case. For example, Originalists disagree about how we understand the fixed Constitutional meaning. Original intent people argue, “We look to the intended meaning, original meaning, look for the public meaning.” In original methods, you look for the contemporary modes or methods of interpretation to identify the meaning when the text was ratified. There’s debate about how we understand the fixed-ness or the fixed meaning, but everybody agrees that there is fixed meaning and that we should apply it in concrete cases. Richard Reinsch: You talk about the construction zone of many Originalists. This is, of course, a widespread criticism of Originalism, that protects itself as under-determined. It doesn’t speak, the law runs out, to use a phrase, the Constitution runs out and a doctrine has to be constructed to make it coherent with all these cases and challenges that are brought. Does not the inherent need for a construction zone lessen the power of Originalism? This is something that a lot of Originalists contend is necessary. What do you say? Lee Strang: Yes. I’m kind of two minds about this, and maybe that’s just my disposition, where I kind of end up in the middle on a lot of these issues. On the one hand, it seems clear to me when I look around at other related human phenomenon like literature or communication, generally, or law inparticular, that I see situations of under-determinacy. It would be surprising to me if one area of human endeavor that was exempt from under-determinacy, where the phenomenon doesn’t give us one right answer, would be constitutional interpretation. Prima facie, I’m skeptical that there wouldn’t be a construction zone. On the other hand, I share what you identified as a concern or criticism of Originalists who have adopted a robust construction zone. You mentioned earlier Professor Balkin from Yale as being an example of that. Because that, I’m confident, becomes a situation where the kind of a minnow of construction swallows the whale of Originalism’s commitment to fix constitutional meaning. What I try to do is identify what I think is the reasonable insight for Originalists who believe in a construction zone which, as I described earlier, I think it’s a fact of human life that many of our endeavors don’t cash-out in determinant answers, and law is one of them, and the Constitution is also one of them. I try to give some examples and reasons to think that that’s the case. Like for example, the vagueness of language, generally, of legal terms in-particular. Then I also try to identify ways in which I think that the construction zone is modest in scope. Here, I rely a lot on the work, which I think is just really excellent, of John McGinnis and Mike Rappaport, talking about contemporary rules of interpretation. I would call them rules of interpretation, which I think existed at the time the original Constitution was adopted and ratified. Also later, for example, with the 14th Amendment. I try to identify what I think are three key closure rules. Rules of interpretation that narrow what would otherwise be a prima facie, broad category of construction. Just one example, this is one I borrowed from McGinnis and Rappaport, is that if a judge is faced with what he or she perceives as under-determined original meaning, in other words, it doesn’t seem to give him enough information to answer the legal issue before the judge, what the judge should do is rely on the best available evidence. There’s two parties before the judge. One is arguing the original meaning is x, one is arguing that it’s y. What the judge should do is, like judges always do, take the argument that is supported by the most, what I call, legal evidence. The most argument and historical evidence combined. When you do that, that means that a large number of cases that would otherwise be under-determined, because you don’t have maybe a 95% degree of confidence or 100% degree of confidence, become closed, become answered because you have a degree of confidence that one party’s arguments are more weighty than the other party’s arguments. To summarize, I think there is a construction zone, but I think Originalism has built within it rules of interpretation that narrow it in a way that makes it, acknowledges the under-determinacy of the Constitution’s original meaning, while it doesn’t undermine Originalism overall. Richard Reinsch: George Will was just on this program to talk about his new book, The Conservative Sensibility. In that book, he has a chapter called “The Judicial Supervision of Democracy,” where he contends for something pretty similar to this idea of judicial engagement, that one of the scholars you cite in the book, Randy Barnett, advocates. George Will argues that really, when we think about the Constitution, outside of the Declaration of Independence, second paragraph of natural rights, it really comes unbound and means nothing if it doesn’t have that content anchoring it. Judges should interpret the Constitution in light of those natural rights. The title of that chapter, “Judicial Supervision of Democracy,” does Originalism point in that direction? I guess another way to ask my question, where do “We the people,” in the Republic and the accountable branches of government, fit into Originalism? Lee Strang: That’s a good, complex question. On one point, Richard, what I would say is, first describe how I would answer these two questions. The answer to both your related questions, one of which is, to what extent are judges authorized to protect natural rights through Constitutional interpretation and their judicial power? Then relatedly, to what extent is popular democracy or the role of the American people play a role within their own self-governance, are empirical questions within Originalism, that it depends on what the Constitution’s original meaning is, how it cashes-out. Does it authorize, in fact, judges, in the exercise of judicial power, to utilize robust interpretations of natural rights? You mentioned Professor Barnett. I think Professor Barnett has the strongest argument in the scholarship out there, that the Constitution’s original meaning is strongly rights protective, and my own … I even investigated that historical claim fully, but to the extent that I have, I think that it’s most robust vis-a-vis the federal government, and that it’s less powerful regarding the ability of state governments to govern their people. On the flip side, what role do the American people have? I think Originalism provides a really robust and certainly, a relatively more robust role for the American people in their own self-government than most versions of non-Originalism. One exception I’m thinking of is Eric Segall and his version of living Constitutionalism. How does Originalism do that? It does that through a number of mechanisms. One, of course is, and I think Professors McGinnis and Rappaport do a good job of making this argument that a revivified culture of Originalism would help Americans exercise their civic muscles and return to the practice, which I think is salutatory and although contentious, of doing Article Five Amendments. Second, a properly interpreted Constitution, I think, leads to lots of questions, lots of legal questions, lots of social questions that the Constitution doesn’t answer. For example, abortion. I think what the Constitution says is that abortion is a state’s right issue within its area, and then slightly a federal issue on inter-state issues. Those would be areas where the American people, either through their state or national representatives, express their policy views regarding abortion. Then third, I think what Originalism does is it creates a culture where Americans redevelop…
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