« Tillman on Historians and Originalists
Mike Rappaport
| Main | A Further Thought on Delegation and War Power
Michael Ramsey
»

09/05/2013

Peters on Constitutional Authority
Chris Green

Via Larry Solum, who calls the article "an important critique of the New Originalism," is a new article by Christopher J. Peters, What Lies Beneath: Interpretive Methodology, Constitutional Authority, and the Case of Originalism. The abstract:

It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?

This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because we disagree politically about the particular results of using one methodology versus another.

The Article contends that methods of interpretation must be defended by reference to accounts of constitutional authority. It takes as its case in point the family of interpretive approaches known as originalism, which favors the resolution of constitutional issues according to a meaning fixed at the Framing. Originalism is an apt case study because it currently is ascendant in both academic theory and judicial practice and, not incidentally, because it often is suspected of being a cover for controversial political commitments.

The Article illustrates the relationship between interpretation and authority by assessing the “natural rights” defense of an originalist Constitution offered by the influential New Originalist Randy Barnett. Barnett’s account fails, the Article contends, because it cannot explain the authority of the Constitution it purports to justify. But its failure underscores the centrality of authority to methods of interpretation.

The Article then examines three general accounts of constitutional authority that might be thought to entail originalism. Accounts based on “consent” or “popular sovereignty,” while rhetorically appealing, lack any basis in the realities of modern society. Accounts based on what the Article terms “Moral Guidance” – the supposedly superior wisdom of the Framing process – are both descriptively implausible and conceptually problematic. Only accounts based on “Dispute Resolution,” such as the well-known “Footnote Four” approach from the Supreme Court’s Carolene Products decision, can overcome the fatal flaws of these other accounts. But Dispute Resolution can support only a selective, modest use of originalism.

Originalists, then, are left with a choice, the Article concludes. They can moderate their interpretive methodology as the Footnote Four approach suggests. Or they can insist on thoroughgoing originalism – with nothing to back it up but the bare desire for politically controversial results.

A short comment on one of Peters's arguments after the jump.

Peters considers very briefly at page 38 of the draft--the September 3 version, in case anyone reads this later--the account of constitutional authority I favor: one grounded in the Article VI oath. Here is what he says (after mentioning naturalized citizens):

[G]overnment officials are required by Article VI to swear or affirm that they will “support this Constitution.” But this is a very small percentage of the citizenry. The vast majority of us have not given our express consent to the Constitution's authority.

It is, of course, true that only governmental officials take the oath, but those are the ones whose interpretive methodologies we chiefly care about. Whatever the dead hand problem might mean for the interpretive methodologies of citizens, the Supreme Court, the President, every member of Congress, and everyone in state government are bound to support "this Constitution," and if "this Constitution" is the meaning expressed by the text at the time of the text's adoption, these officials are required to be textualist originalists. Virtually none of the Constitution--the 13A and 21A/2 might be exceptions--even purports to tell ordinary citizens what to do. It is a document intended to bind governmental officials, and in fact the Constitution has engendered a constitutional culture that has convinced officials to take the oath Article VI prescribes.

Peters elaborates a bit in a footnote (102 of the draft) with another argument: 

On its most natural reading, the oath required by Article VI compels officials only to support the Constitution while carrying out their official duties, not to obey it in other capacities. And keep in mind that if an official has no duty to obey the Constitution generally, she has no duty to obey Article VI's oath requirement in particular. It is at least debatable whether an official who has taken the required oath, believing that she is under no obligation to obey the Constitution, would be subject to such an obligation by virtue of having taken the oath.

Again, if officials obey "this Constitution" when performing their official duties, it doesn't much matter how they interpret the Constitution in their private lives. The second suggestion here also seems flawed to me. It is useful to remember the exact language of Article VI, which specifies that officials "shall be bound" by oath or affirmation to support "this Constitution." The whole point of a binding oath, it seems to me, is to create an obligation even where one would otherwise not exist. The existence of an obligation to keep one's oaths--at least a prima facie one, subject to Nazis-at-the-door-style defeasibility--does not seem debatable among people who take oaths seriously, which I think ought to be everyone. Officials who openly refuse to take the oath and nonetheless get away with assuming their positions might not have such an obligation, of course, but Article VI has managed to get itself obeyed by the current generation pretty successfully.

Update (9/6): Peters makes the same arguments about Article VI at page 20 and note 35 in the 9/3 draft of this chapter.