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Leiter on Originalism:
A few weeks ago, I spoke on "The New Originalism" at a colloquium sponsored by the Philosophy Department at the University of Texas. Brian Leiter was there and he now has posted Justifying Originalism in which he thoughtfully and respectfully comments on my talk. After a nice summary of my oral presentation, he offers this critique:
[Barnett] thinks that the writtenness of the Constitution is a fact supporting the New Originalism, becaue the original public meaning as written is something that binds those who make laws that, in turn, purport to bind us as citizens. At this point, I confess I don't follow the arguments. If "constitutional legitimacy" in Barnett's terms (or "authority" in Razian terms) is the benchmark for the method of interpretation we should apply to a text, then I can not see how the writtenness of the text figures as an independent consideration.

Indeed, it seems to me a stronger conclusion is suggested: namely, that once we acknowledge (as Barnett rightly does) that a theory of constitutional interpretation must answer to a theory of constitutional legitimacy, then the constitution (as a written document, or as a document about which framers had some original intention, or as a document which had an original "public" meaning, and so on) drops almost entirely out of the picture: the theory of constitutional legitimacy tells judges how they should decide cases, and the written constitution is, at best, a proxy for what is constitutionally legitimate or is relevant because of its effect on the reasonable expectations of citizens (the latter being a factor bearing on constitutiona legitimacy). In other words, Barnett's theory of constitutional interpretation, because it (unlike most theories--Ackerman's, Amar's, etc.) has the correct moral structure is not really a defense of originalism, but a defense of whatever method of interpretation produces "legitimate" (i.e., morally authoritative) outcomes.
In my book, Restoring the Lost Constitution: The Presumption of Liberty, I present a normative argument for originalism. Here is a clearer breakdown of my argument for originalism that I believe shows why constitutional interpretation should not be reduced to whatever results accord with whatever background conception of justice accounts for a constitution's legitimacy. Note that each step in the following description requires further elaboration and defense. My goal here is simply to clarify the structure of the argument so as to advance the discussion.

(1) In Restoring, I begin by denying that the legitimacy of a constitution of the sort that governs a territory like the United States could ever be grounded on the "consent of the governed" because such consent is and must always be a fiction. If such a constitution is ever legitimate at all (and perhaps none can be), it must be because it is warranted in imposing its commands on nonconsenting members of the public.

(2) I then distinguish between the justice of a law and the legitimacy of a law-making process. A law is just and entails a duty of obedience if it does not violate the rights of the persons on whom it is imposed (with or without their consent) and is necessary to respect the rights of others. In contrast, a law-making process is legitimate if it offers procedural assurances that laws imposed on nonconsenting persons are likely enough to be just as to impart on these laws the benefit of the doubt. In other words, the fact that laws have been produced by these rights-protective procedures provides a prima facie reason why they ought to be obeyed. A just law could be illegitimate because not produced by such a process and a legitimate law could be unjust if the process has failed in a particular case to produce a just law.

(3) A written constitution, like such constitutional features as separation of powers, federalism, bicameralism, regular elections, varying terms of office, etc., should be considered just another structural feature of our constitutional order that defines a law-making process. All these features are means to the end of achieving (among other ends) a legitimate constitutional order in the absence of real consent. They either conduce to this end or they don't. Of course, it is easy to imagine constitutional orders without this structural feature--just look around the world--just as it is easy to imagine law-making systems without the other structural features of the U.S. Constitution. By the same token it is easy to imagine a system in which its written constitution is ignored or "updated" by the courts--just look at the U.S--but whatever enhancement of legitimacy is provided by writtenness, as described below, will be absent.

(4) The device of a written constitution was developed as means of imposing law on those who impose law on the people. In particular, it was a means both to authorize the use of lawful power and at the same time limit the scope of those powers to imposing laws that are both necessary and proper. It defines the process of lawmaking more particularly than an "unwritten constitution" does, and provides express limits on government power that are lacking in legal systems in which the governing parliament is considered sovereign.

(5) This normative defense of a written constitution is based on the claim that the people (either collectively or as individuals) retain their sovereignty or rights. They are the principals and the government as a whole, including Congress, are mere agents or "servants" of the people. In a principal-agent relationship, the principal retains some or all of her rights while delegating certain powers to the agent, who must exercise those powers on (a) on the principal's behalf and (b) subject to the principal's control. It is no coincidence that the Ninth Amendment refers to the "rights . . . retained by the people," while the Tenth Amendment refers to the "powers . . . delegated to the United States" by the Constitution.

(6) A written constitution defines the nature of this agency relationship and, by so doing in writing, helps police it. It is easier to see where the agent exceeds its proper powers when these powers are defined in writing. In Lon Fuller's terms, writings serve the evidentiary, cautionary and channeling functions of formality.

(7) The agents — the Congress, the President, the Judiciary — whose powers are defined by the written constitution, should not be able to change or expand the scope of their own powers, even in combination with each other. As Isaac Penington wrote in 1651: "They who are to govern by Laws should have little or no hand in making the Laws they are to govern by."

(8) So that they do not define or alter the scope of their own powers, some other body besides these government agents must approve any alteration or amendment, whether that other body be a "convention" or state governments. This principle is reflected in the procedures described in Article V. We could also imagine a referendum scheme to ratify amendments of the sort urged by Akhil Amar but the written U.S. Constitution does not provide for this process.

(9) Therefore, in the absence of a proper amendment, the meaning of the written Constitution should remain the same until it is properly changed. This is another way of describing original public meaning originalism.

To reiterate, each step in this argument merits additional explanation and defense, but this is a blog post that is overly long as it is. My objective here is simply to clarify the structure of the normative argument being made on behalf of originalism.

Notice that, while "justice" is the ultimate normative justification for originalism, the intermediate steps are crucial. If a written constitution is valuable for the reasons identified--to define and police the principal-agent relationship--then one cannot simply dispense with it in pursuit of greater justice. More precisely, agent-judges cannot on their own authorize agent-legislatures to exceed their proper powers as defined by the written Constitution in pursuit of greater "justice" than that document provides.

This implication is analogous to defenses of "rule" over "act" utilitarianism, or what Larry Alexander has called "indirect utilitarianism." Or if you think that rule utilitarianism always collapses into act utilitarianism, then consider another analogy: Placing the burden of proof on the prosecution as a means to the end of justice, especially the end of preventing the wrongful conviction and punishment of the innocent. Acknowledging that the presumption of innocence is ultimately justified as means the achievement of justice does not justify dispensing with the presumption in particular cases to convict someone we "know" is guilty. The presumption of innocence is a systemic way of dealing with a problem of knowledge--the problem of enforcement error--as well as a problem of interest--the problem of enforcement abuse. (I discuss both in my book, The Structure of Liberty: Justice and the Rule of Law.) By the same token, judges should not allow the legislature to exceed its powers by changing the meaning of the Constitution because doing so would better serve what they personally believe is justice. Once again, adhering to a written constitution is a way to address the problem of knowledge (judicial mistakes about what justice may be) as well as the problem of interest (judges who knowingly disregard justice). This normative defense of originalism is a special case of the normative defense of the rule of law I offered in The Structure of Liberty. Although the rule of law is ultimately dependent on a conception of justice, it functions independently and is normatively warranted as a means of solving pervasive social problems of knowledge, interest, and power.

Of course, one could contest the desirability of limiting the power to convict the guilty by means of a presumption of innocence or of limiting the powers of government by means of a written constitution. The latter is often the underlying objection being made by critics of originalism. But the nature of the objection is obscured by claims that the written constitution is merely being "interpreted" rather than frankly admitting that the Constitution is being amended for the better by judges. Perhaps this use of language is an homage that constitutional vice plays to constitutional virtue.

Two final points. First, my normative defense of originalism is not the only one out there. Keith Whittington defends originalism on popular sovereignty grounds that I reject. Second, Larry Solum makes the important distinction between descriptive originalism and normative originalism. According to this distinction, as a purely descriptive matter, original public meaning is simply what a text does mean according to the Gricean theory of language, which Larry thinks is the best available theory of meaning in this context. This may be the sort of assertion of meaning to which Brian reacts negatively, but needs to be hashed out as matter of the philosophy of language. Whether and to what extent judges or others ought to adhere to this meaning is what Larry calls "normative originalism" and here Brian might get back on the train. Larry has yet to write about this distinction, but I wanted to identify it as relevant perspective on this issue. I plan to address this matter in future work and am open to adopting it, but that is a separable argument than what I am presenting here today.

Update:Larry Solum has now posted on the distinction between descriptive or semantic originalism and normative originalism in Semantic and Normative Originalism: Comments on Brian Leiter's "Justifying Originalism"

Related Posts (on one page):

  1. Solum on Leiter (and Me) on Originalism:
  2. Leiter on Originalism:
John McCall (mail):
Your Penington quote seems inappropriate: it seems to be arguing for a legislative/executive split, not a formal constitution amendable only by separate bodies (although he may well argue for such in other places). If the one generalizes to the other, it's at least not clear how.
10.29.2007 3:47pm
tbaugh (mail):
I very much enjoy and appreciate the excellent work of Professors Leiter and Barnett on this critical topic. In the end, I think Professor Whittington is correct, and, without belaboring the point, would recommend his book on the topi---Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review.
10.29.2007 3:53pm
John McCall (mail):
I retract my comment; I spoke too soon, and saw your argument mere seconds after I'd given up. Clearly the legislature (which presumably must enforce the procedures of law-making upon itself) should not itself define those procedures.
10.29.2007 3:54pm
Scott Scheule (mail):
http://www.no-treason.com/archives/2003/03/26/we-the-people/
10.29.2007 4:08pm
Bruce:
(8) seems to be a crucial move to me. But I'm not sure it's accurate that the only means of preventing self-dealing (to the government as a whole) is some sort of formal ratification by an external entity. There may be other ways of checking such governmental self-dealing that allow necessary amendments without the need for Article V ratification, e.g., a change in the broader social or legal culture, as evidence by a long accretion of judicial and other interpretations. I assume something like this process governs such amendments in systems without written constitutions.
10.29.2007 4:47pm
Chris 24601 (mail):
I'm curious about how this argument fits with Barnett's particular version of originalism. I don't see how this argument is consistent with sharply distinguishing constitutional meaning from application (or Fregean sense from Fregean reference, or intension from extension, or connotation from denotation--for more see here). (8) says that "some other body besides these government agents must approve any alteration or amendment," but that would seem to apply just as well to changes-in-the-world-based changes in the application or reference of constitutional language--that is, changes in constitutional outcomes--as to changes in the textually-expressed meaning or sense. That is, this argument seems to support Raoul-Berger-style WWFD ("What Would the Framers Do?") originalism, which would attempt to hold constitutional applications fixed, as well as the meaning historically expressed by the text.

If we want to be textualist originalists (or what I'd prefer to call textualist semi-originalists), I think we instead need to focus on the "this Constitution" clauses and other constitutional indexicals like forms of "we," "now," and "here." The key thing, as I see it, is that the Constitution views itself as a historically-situated textual command, and if we swear the Article VI oath, we are bound to take the Constitution on its own terms.
10.29.2007 5:21pm
MarkField (mail):
I think this line of reasoning uses sovereignty of the people to deny the actual exercise of sovereignty by the people. Prof. Barnett's argument, as I would shorten it, is that the generation of 1789-91 exercised their sovereignty to establish a Constitution. That Constitution binds us today -- not just to the words used, but to the meaning of those words circa 1790 -- notwithstanding our own popular sovereignty. The written constitution thus supersedes popular sovereignty and therefore contradicts the doctrine from which it derives its legitimacy.
10.29.2007 8:56pm
33yearprof:
That Constitution binds us today -- not just to the words used, but to the meaning of those words circa 1790 -- notwithstanding our own popular sovereignty. The written constitution thus supersedes popular sovereignty ...

only so long as we choose not to use our modern-day popular sovereignty to amend the Constitution in accordance with it's procedures.

For some reason, Madison and the framers thought it was necessary to have a FIXED document (in writing, not just a malleable "English-type" theoretical constitution - an alternate they knew about but did not adopt) and to have that document RATIFIED by conventions of the people. By refusing to adopt the English "constitution" model, the framers protected Americans from the vacillations of the Legislature, could they really have meant to leave Americans naked to the vacillations of the Judiciary? Trading elected representatives for appointed pseudo-aristocrats? I think not.
10.29.2007 10:02pm
Clayton E. Cramer (mail) (www):
At the risk of seeming an ignorant barbarian among you law professors, I would suggest that a shorter criticism
might be this: If originalism is not a valid basis for deciding how to interpret the text of a constitution, why did 55 men spend several months arguing about exactly how to compose the text of the U.S. Constitution? Why did
the First Congress spend quite a number of hours in 1789 arguing about the exact text to send to the states to
ratify? Why did the state conventions debate at length ratification of the Constitution and the Bill of Rights? If the meaning of any constitutional provision is simply what a judge today decides makes sense, then all that argument was for nought, and all the text of the Constitution and Bill of Rights can be replaced with a single sentence. "The judges decide what this means." Clearly, the people involved in this process: drafters, ratifiers, pamphleteers, and electors who picked the delegates to ratifying conventions, intended these texts to mean something, or they would not have spent so much energy making a decision that was going to be turned over to judges to figure out a method to justify why the living, breathing, constantly mutating Constitution that started out looking like a gazelle is now half Komodo dragon, half brontosaurus.

Rakove's _Original Meanings_ p. 101 makes the claim that what the ratifying conventions said about the
Constitution was of greater weight than what the participants at the Philadelphia Convention said, because
they were elected by the electors of each state for the express purpose of making this decision. While Rakove doesn't argue that the Philadelphia Convention was illegitimate, it was clearly a case of a group that exceeded the authority granted them by the Continental Congress--a group whose legitimacy to make a new, national government binding on not just the States, but the people, was necessarily of lesser strength than the ratifying conventions elected for that purpose.
10.29.2007 10:17pm
Raghav (mail) (www):
33yearprof: only so long as we choose not to use our modern-day popular sovereignty to amend the Constitution in accordance with it's procedures.

It seems to me like this idea of popular sovereignty needs more work. What if the Constitution required the unanimous consent of everyone in the country to amend? Would the Constitution still not supersede our popular sovereignty, which we could theoretically use at any time?

Is the provision that all states must be equally represented in the Senate legitimate, given that we can't amend it?

Leiter mentioned that the Founders' views on constitutional interpretation are very much disputed, so I'm not sure appealing to what they must have meant is going to get us very far. Lots of countries, after all, have written constitutions without originalism as a theory of constitutional interpretation.
10.29.2007 11:34pm
MarkField (mail):

only so long as we choose not to use our modern-day popular sovereignty to amend the Constitution in accordance with it's procedures.


Exactly my point. Their popular sovereignty became reified into the Constitution. Our popular sovereignty must be subservient to theirs.

In Jefferson's words, the earth belongs to the living. The dead have neither powers nor rights over it.
10.30.2007 12:00am
33yearprof:
Is the provision that all states must be equally represented in the Senate legitimate, given that we can't amend it?


Can't or won't. If we won't it must be because not enough of us present-day popular sovereigns choose to do so. That deliberate inaction is itself an exercise of popular sovereignty subservient to no one.

If you don't like amending the Constitution according to the rules of procedure, go have a Revolution - the ultimate exercise of YOUR popular sovereignty. If you win, of course.
10.30.2007 12:19am
Jon Rowe (mail) (www):
I think their discussion on the "Dead Hand of the Past" effectively answers Cramer's questions.


If the meaning of any constitutional provision is simply what a judge today decides makes sense, then all that argument was for nought, and all the text of the Constitution and Bill of Rights can be replaced with a single sentence.


Fine, let's presume that judges ought to hold the Constitution's text says the words mean. If a) the Constitution protects free speech, and b) spreech = words and pictures, and c) pornography is composed of words and pictures, then d) based on Constitution's text, pornography is protected free speech.

The text of the Constitution can mean a number of things. A jurist using my logic most certainly would not be "replacing" the text of the Constitution but following it.
10.30.2007 12:29am
Jon Rowe (mail) (www):
This probably should have read:

"Fine, let's presume that judges ought to hold the Constitution's text means what the words say they mean."
10.30.2007 12:31am
Raghav (mail) (www):
33yearprof: Can't or won't. If we won't it must be because not enough of us present-day popular sovereigns choose to do so.

Um, can't? Check Article V; that provision is specifically shielded from amendment.

As is, to push the point, the amendment procedure itself. (Presumably. Article V doesn't actually say this.)
10.30.2007 12:44am
Clayton E. Cramer (mail) (www):

Exactly my point. Their popular sovereignty became reified into the Constitution. Our popular sovereignty must be subservient to theirs.

In Jefferson's words, the earth belongs to the living. The dead have neither powers nor rights over it.
Except that you can amend the Constitution. Don't tell me it can't be done. We amended the Constitution to ban alcohol, make it legal again, give women the right to vote, give 18 year olds the right to vote, ban poll taxes, and a host of other matters. What you mean is that there is no great support for your causes, so you whine that we are stuck with the dead hand of the past.

It's a contract across the generations. But unlike a contract, it doesn't require unanimous agreement to change.
10.30.2007 12:57am
Clayton E. Cramer (mail) (www):

Fine, let's presume that judges ought to hold the Constitution's text says the words mean. If a) the Constitution protects free speech, and b) spreech = words and pictures, and c) pornography is composed of words and pictures, then d) based on Constitution's text, pornography is protected free speech.

The text of the Constitution can mean a number of things. A jurist using my logic most certainly would not be "replacing" the text of the Constitution but following it.
Except that originalism isn't following the text, but the original meaning that the text had. By your reasoning, a judge can do a Humpty-Dumpty and conclude that the establishment of religion clause lets him impose taxes on everyone to fund one church. He just has to engage in the right substitution of words to mean what he wants them to mean.
10.30.2007 12:59am
33yearprof:
Raghav: Um, can't? Check Article V; that provision is specifically shielded from amendment.


The one thing you learn as a tax lawyer is to read precisely. The Senate equality provision CAN be amended it just requires a more stringent process. Regular amendment passage plus consent of the state(s) involved. Certainly more difficult (maybe much more difficult) but not impossible if that is the choice of enough modern day "popular sovereigns."
10.30.2007 1:12am
Perseus (mail):
In Jefferson's words, the earth belongs to the living.

In Hamilton's words: "Questions might be multiplied without end, to demonstrate the perniciousness and absurdity of such a doctrine."


If you don't like amending the Constitution according to the rules of procedure, go have a Revolution - the ultimate exercise of YOUR popular sovereignty. If you win, of course.

I agree, but you don't have to revolt outright. For example, Madison admitted that the Constitutional Convention exercised extra-legal power in reducing the requirement for ratification from unanimity to 9 states. But he noted that the Constitution was to be submitted to the citizens for their approval, which, if approved, would "blot out antecedent errors and irregularities." The federal judiciary, by contrast, does not submit its decisions to the citizens for their approval. So if people don't want the federal judiciary to be bound by the understanding of the text by dead framers/ratifiers but rather by the living, then the decisions of the federal judiciary ought to be submitted to the living for approval (or more practically, federal judges ought to face the voters in frequent elections just like many state judges do).
10.30.2007 6:04am
David M. Nieporent (www):
In Jefferson's words, the earth belongs to the living. The dead have neither powers nor rights over it.
But that's an argument against the constitution itself, not against a particular method of interpreting it.
10.30.2007 7:56am
Jon Rowe (mail) (www):

Except that originalism isn't following the text, but the original meaning that the text had. By your reasoning, a judge can do a Humpty-Dumpty and conclude that the establishment of religion clause lets him impose taxes on everyone to fund one church. He just has to engage in the right substitution of words to mean what he wants them to mean.


I don't see how that could be done because if you read what I read carefully you'll see that what you propose contradicts the test of the Establishment Clause and what I propose exactly follows the test of the Free Speech Clause.
10.30.2007 8:53am
Temp Guest (mail):
Two minor historical points: (1) The persons who wrote the Constitution were intimately familiar with two historical situations which illustrated the importance of written law: (a) The founding of the Roman Republic when one of the major demands of the Plebes was that the Roman laws be written and publicly displayed to prevent their corruption and misuse by the ruling class (c.f. Livy's Histories). (b) The Icelandic republic which ultimately failed in part because of a breakdown of the oral legal tradition (c.f. Njal's Saga). (2) The Declaration of Independence, Articles of Confederation, and Constitution use the language of John Locke and are very much almost ideal types of a Lockean social contract. The framers clearly saw them in this light. As such they are binding on future generations.
10.30.2007 10:12am
Raghav (mail) (www):
Perseus: But he noted that the Constitution was to be submitted to the citizens for their approval, which, if approved, would "blot out antecedent errors and irregularities."

Approval by ratification conventions made up of fewer than 2,000 people, who were elected by well under 50% of the population? We wouldn't consider that an exercise of popular sovereignty today, and we shouldn't.

33yearprof: Certainly more difficult (maybe much more difficult) but not impossible if that is the choice of enough modern day "popular sovereigns."

In that case, any sort of amendment procedure would be consistent with popular sovereignty, even one that required each amendment to have Raghav's approval. It seems absurd to me that "popular sovereignty" could be offered up as a justification for the authority of a document signed by 39 men, written by 55, ratified by 1,648, who were elected by around 160,000, simply because there is some possibility of amendment.

But then, I don't think armed revolution is an exercise of popular sovereignty either, so maybe I'm just clueless.
10.30.2007 10:40am
MarkField (mail):

Except that you can amend the Constitution.


I've never understood the relevance of this. True popular sovereignty means that We, The People, can decide on change however we damn well want to. The amendment process is, itself, the reification of someone else's popular sovereignty, not ours. The whole point of popular sovereignty is that WE get to decide, not "them".


Certainly more difficult (maybe much more difficult) but not impossible if that is the choice of enough modern day "popular sovereigns."


Rahgav made the same point I'm going to make, but I want to re-phrase it a bit. The original exercisers of popular sovereignty got to decide for themselves what level of support they needed or wanted to form the new government. Your position forbids us this right, demanding instead that we subordinate our own right to decide these questions to those who lived 215 years ago.

This has drastic implications for the argument Prof. Barnett is making. In essence, he's legitimizing the Constitution as an exercise of popular sovereignty (so far, so good), but then he's denying our right to exercise popular sovereignty. That eviscerates the very legitimacy he relies on.


In Hamilton's words: "Questions might be multiplied without end, to demonstrate the perniciousness and absurdity of such a doctrine."


I've always admired Hamilton's gift for snark. Look, I'm making the argument here a little stronger, and with less nuance, than I would in some other forum, but Jefferson's basic point has real force and it causes a fundamental problem for Prof. Barnett's position (or that of any originalist).


The federal judiciary, by contrast, does not submit its decisions to the citizens for their approval. So if people don't want the federal judiciary to be bound by the understanding of the text by dead framers/ratifiers but rather by the living, then the decisions of the federal judiciary ought to be submitted to the living for approval (or more practically, federal judges ought to face the voters in frequent elections just like many state judges do).


This argument cuts both ways. You can just as well make the same argument in reverse about "living constitutionalism". Or, for that matter, about ANY theory of interpretation. The fact is that courts must use some method of interpretation. You can't privilege one of them, and one alone, by excluding it from the principle of "approval by the people".


But that's an argument against the constitution itself, not against a particular method of interpreting it.


It's both. Jefferson was willing to carry it so far as to be an argument against constitutions. I'm not taking it that far.


The framers clearly saw them in this light. As such they are binding on future generations.


This begs the question. The fact that the Framers saw the document a certain way -- and I'm accepting your interpretation for the sake of argument -- is an exercise of their popular sovereignty. But the fact of how WE see the document is an exercise of our popular sovereignty.

I'd just add that the Framers were familiar with much more than just the Roman and Iceland examples. If you want to argue that those were particularly influential, you'd need to make a more detailed argument.
10.30.2007 12:23pm
Jon Rowe (mail) (www):

This has drastic implications for the argument Prof. Barnett is making. In essence, he's legitimizing the Constitution as an exercise of popular sovereignty (so far, so good), but then he's denying our right to exercise popular sovereignty. That eviscerates the very legitimacy he relies on.


Actually you should read his book, or reread it. His argument answers this claim and in fact his theory does not rely on popular sovereignty precisely for the reasons you and Raghav outline.
10.30.2007 12:59pm
Flash Gordon (mail):
Why isn't amending the Constitution an exercise of "our" popular sovereignty and not "theirs?" "We", meaning 2/3 of Congress and 3/4 of the states, can make any change to the Constitution "we" want.

Is your dissatisfaction with the amendment process that, if it were followed, you'd have to convince a sufficient number of your fellow countrymen of the wisdom of the change you want, instead of merely persuading activist judges to impose it on them?
10.30.2007 1:06pm
MarkField (mail):

Actually you should read his book, or reread it. His argument answers this claim and in fact his theory does not rely on popular sovereignty precisely for the reasons you and Raghav outline.


Fair enough. I haven't read this book (I have read others he's written), but was addressing the summary points above, particularly 5, 8, and 9.
10.30.2007 1:09pm
MarkField (mail):

Why isn't amending the Constitution an exercise of "our" popular sovereignty and not "theirs?" "We", meaning 2/3 of Congress and 3/4 of the states, can make any change to the Constitution "we" want.


Because "they" are attempting to control how we make the changes.
10.30.2007 1:11pm
Jon Rowe (mail) (www):
What if I agree with 1/3 of the Congress and 1/4 of the states that doesn't support the Amendment?

In order for government to impose its coercive will upon people, for "consent" to be meaningful, it must be unanimous. Barnett's book, at least gives a theory that answers this problem.
10.30.2007 2:36pm
Raghav (mail) (www):
John Rowe: His argument answers this claim and in fact his theory does not rely on popular sovereignty precisely for the reasons you and Raghav outline.

Right, exactly. Professor Barnett rejects the sort of popular sovereignty that a lot of people in this comment thread are proposing, and offers an actual promising justification for constitutionalism, instead of making dead-end arguments that we all really approve of the Constitution even though we were never consulted.

Anyway, I look forward to Professor Leiter's reply.
10.30.2007 3:11pm
Raghav (mail) (www):
Mark Field: Jefferson was willing to carry it so far as to be an argument against constitutions.

In point of fact, he thought it meant every generation should get a constitutional do-over.
10.30.2007 3:16pm
John T. Kennedy (mail) (www):
I think this line of reasoning uses sovereignty of the people to deny the actual exercise of sovereignty by the people. Prof. Barnett's argument, as I would shorten it, is that the generation of 1789-91 exercised their sovereignty to establish a Constitution.


A generation? No generation approved the Constitution, the overwhelming majority of Americans were never even consulted. Women, natives and slaves had no vote at all for starters and not even all white men were eligible. Lysander Spooner estimated that no more than 5-10% of the population was even eligible to vote at the time of ratification. Many of those eligible didn't vote. Not all who voted supported the constitution. The Constitution was ratified by a very small minority of Americans, certainly not by a generation.

Spooner also correctly dismisses any basis for Barnett's supposed moral justification of constitutionalism.

Spooner on moralty:

"Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, — that is, all the laws of their own making, — have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice of them, unless it be to trample them under foot, as usurpations. If they command men to do justice, they add nothing to men's obligation to do it, or to any man's right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything, which justice could permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. They are all necessarily either the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, or the senseless work of ignorant or thoughtless men, who do not know, or certainly do not realize, what they are doing. "


Barnett has never successfully dealt with this simple objection. He waves at it on pages 49-52 of RTLC but offers no real argument.
10.30.2007 6:48pm
randal (mail):
If a written constitution is valuable for the reasons identified--to define and police the principal-agent relationship--then one cannot simply dispense with it in pursuit of greater justice.

While that's true, it points to the fatal flaw in your argument. You only justify originalism to the extent a constitution engages in defining and policing the principal-agent relationship.

Your normative arguments presuppose that the constitution in question establishes a principal-agent relationship. You make no attempt to explain why your normative arguments would apply to constitutional clauses on other subjects. Under your theory, a judge (or citizen) may correctly claim that a certain clause in the constitution is not well-formed because it doesn't relate to establishing a principal-agent relationship.

I think this is roughly what Leiter called out in his critique, referring to your normative arguments around the principal-agent relationship as a "theory of constitutional legitimacy." In other words, you've built a semi-circular argument:

1) Suppose that a constitution can be legitimate at all.
2) A legitimate constitution must have these certain properties in order to be stable, including modes of interpretation.
3) Constitutions with these properties and thusly interpreted therefore are legitimate.

You can see how this argument has problems. Step 2 necessarily posits a "theory of constitutional legitimacy." I don't think therefore Leiter is wrong to say that your argument rests on a theory of constitutional legitimacy to such a degree as to inform the interpretation of the constitution itself... seeing as that's how your argument justifies originalism.

In other words, you don't get to use your argument to arrive at originalism and then say "Ok, it doesn't matter how we got here."
10.30.2007 10:38pm