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36 posts from August 2017


Dorf and Solum on the Determinacy of Originalism
Mike Rappaport

Originalism continues to be debated among scholars.  Serious work occurs in the academic journals but also in the blogs.  If one is not reading the blogs, one simply misses a lot of what is important.  Consider the following example.

Recently, Michael Dorf, a thoughtful commentator on originalism, wrote a post that criticized originalism.  The post is a relatively long one that cites an academic study.  His main point is that, while originalists claim that originalism is more determinate than other approaches to constitutional interpretation, it is not true based on an academic study of originalist judges.  According to Dorf, originalist judges turn out to produce strongly conservative results, but one would not expect “honest originalism” to be so conservative.

Larry Solum, a prominent originalist, has critiqued the Dorf post.  Larry has put up four posts– see part 1, part 2, part 3, and part 4.  Both the Dorf post and and Solum posts are well worth reading in full.

Here I want to emphasize an important aspect of Solum’s response to Dorf.  Dorf, like many originalist critics, identifies certain alleged defects of originalism.  But originalism, like all theories, is not perfect and has its weaknesses.  The relevant question is whether originalism is better than the alternative approaches.  Put differently, we do not want to commit the nirvana fallacy – criticizing a theory for not being perfect.

One way to avoid the nirvana fallacy is to compare originalism to real world alternatives.  And if there is more than one alternative – which there are many in the case of nonoriginalism – the question is to compare originalism to various other approaches.  Consequently, Solum has advocated the process of pairwise comparisons in this area, where originalism is separately compared to the various alternatives.  Solum claims that Dorf does not engage in this process and as a result does not support his claims about originalism’s lack of determinacy.  Solum writes:

For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case.  He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology.  For some alternatives, it seems obvious that originalism would be more constraining – even if originalist judges are highly imperfect.  For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records.  Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.

It would be helpful if Professor Dorf would specify what alternative or set of alternatives to originalism he has in mind when he claims that originalism is not more constraining than the alternatives.

Solum’s point here is important.  It is not enough to criticize originalism.  One must show that other alternatives are better than originalism in the relevant respect.

William Baude: Originalism as a Constraint on Judges
Michael Ramsey

William Baude (University of Chicago Law School) has posted Originalism as a Constraint on Judges (University of Chicago Law Review, Vol. 84, 2018) on SSRN.  Here is the abstract:

One of Justice Antonin Scalia’s greatest legacies was his promotion of constitutional originalism. One important feature of Scalia’s particular arguments for originalism was constraint—the idea that originalism was centrally a way, the best way, to constrain judicial decision-making, whereas nonoriginalist theories would essentially license judges to make up constitutional law as they went along.

In this short essay, I honor Justice Scalia with two observations about originalism and constraint. The first is that originalist scholars today are much more equivocal about the importance and nature of constraining judges. This is a point that may be obvious to those steeped in the latest originalist theory, but apparently cannot be stated often enough or clearly enough to those who are not.

The second observation, which relates to the first, is that the concept of constraint is ambiguous in several respects and that originalism may be better at some kinds of constraint than others. In particular, I emphasize the difference between external constraints, which help others to judge the interpreter, and internal constraints, which focus on allowing the interpreter to constrain him- or herself. As reflected and refined in modern scholarship, originalism may not be terribly good at the former, but it may be much better at the latter. In other words, originalism can still have constraining power, but mostly for those who seek to be bound.

Further comments on the article from Professor Baude are here.


David Weisberg on the Dorf-Solum Debate
Michael Ramsey

David Weisberg ocmments; 
Jerry Seinfeld once characterized his TV sitcom as “a show about nothing”.  With all due respect to Profs. Michael Dorf and Larry Solum, their debate over “How Determinate is Originalism?” is at bottom a debate about nothing.
Original-public-meaning originalism is supposed to be a method for fixing the meaning of words and phrases in the Constitution.  Profs. Dorf and Solum assume that originalism produces results that do assign such meanings, and they then enter into a debate about the degree of “determinacy” attaching to those assigned meanings.  But the assumption they both rely on is false, because the methodology of original-public-meaning originalism never reaches any result.  Instead, the methodology leads to an infinite regress from which the conscientious originalist can never escape.
I have shown that original-public-meaning originalism generates the following Paradox of Originalism: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.
A few moments of reflection will confirm that the Paradox of Originalism ensures that the conscientious originalist who endeavors to determine the meaning of a word or phrase in the Constitution can never complete that task.  There will always be a word or phrase in the “definition” of the constitutional word or phrase that might itself require a time-dated original definition.  The methodology therefore never reaches a conclusion.  Because originalism never reaches any conclusion, there is nothing that can be judged to be either determinate or indeterminate in any such conclusion.

Martin Lederman: History’s Lessons for the Constitutionality of Wartime Military Tribunals

In the current issue of the Georgetown Law Journal, Martin Lederman (Georgetown): Of Spies, Saboteurs, and Enemy Accomplices: History’s Lessons for the Constitutionality of Wartime Military Tribunals (105 Geo. L.J. 1529 (2017)).  Here is the abstract: 

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at the heart of a potentially landmark case, al Bahlul v. United States, currently before the Supreme Court.

In the rare cases where the Supreme Court has recognized exceptions to Article III’s criminal trial protections, it has typically invoked functional and normative justifications. When it comes to adjudication of war-related domesticlaw offenses, however, neither the government nor the appellate judges who have defended commission trials have offered any such functional or normative considerations sufficient to justify denial of the independent judge and jury that Article III guarantees. Defenders of the military tribunals have instead relied almost exclusively upon historical claims of two kinds to defend the constitutionality of using military commissions in this context. This Article addresses one of those historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to prosecute a war as it did during the Revolutionary War. According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a practice of military adjudication of offenses that were not violations of the international law of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against certain spies and against disloyal civilians who aided the British. The earliest Congresses purportedly confirmed this constitutional understanding by enacting statutes permitting military trials for spying and for aiding the enemy—statutes that have remained in the federal code ever since.

This Article offers the first comprehensive account of the Revolutionary War precedents. It discusses how they were understood in the ensuing decades and the ways in which they, and the post-1789 statutes, have been invoked and mischaracterized as authority in later wars. This history demonstrates that the received wisdom about these precedents is almost entirely mistaken, and that they provide little, if any, support for a new Article III exception for military adjudication of war-related domestic-law offenses. The Article thus offers an object lesson in how a complex history can be misunderstood and distorted in the course of constitutional interpretation, particularly on questions of war powers.

The pre-constitutional history does, however, include one conspicuous aberration: a 1778 congressional resolution authorizing trial by court-martial of civilians who provided a particular kind of aid to the British army. General Washington relied upon this resolution in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to surrender West Point to the British. This Article shows why it would be a mistake to accord much interpretive weight to the Smith case—a striking deviation from Washington’s otherwise consistent conduct—in crafting exceptions to Article III’s criminal trial guarantees.


Rob Natelson on Bruce Ledewitz on Originalism
Michael Ramsey

At the Independence Institute, Rob Natelson: A Response to a “Living Constitutionalist” (commenting on this column by Bruce Ledewitz: 'Trinity' case marks end of originalism).  From the introduction:

... I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.

Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.

Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt...

Excellent points follow (though perhaps he is a little harsh on law professors?).  Here's the last one: 

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.

Earlier comments by Randy Barnett and me on Professor Ledewitz's column are here and here.


How Determinate is Originalism? (Michael Dorf versus Larry Solum) [Updated]
Michael Ramsey

Michael Dorf at Dorf on Law: How Determinate is Originalism in Practice? (He says: not very).  From the introduction:

When originalism began gaining traction in the 1970s and 1980s, its proponents frequently cited its supposed constraining impact on judges as a virtue. This claim fit well both with originalism's ideological origins and its nature at the time. Although appeals to the framers were a common trope in judicial rhetoric in prior periods, by the time originalism began to crystalize as an "ism," it was largely a program of resistance against what conservatives saw as the excesses of the Warren Court and, to the extent that the Burger Court built on or failed to cut back on the work of the Warren Court, the Burger Court as well. At the time, originalism was generally promoted as aiming at implementing the framers' intent, which was thought to be reasonably determinate in its concrete applications. E.g., if the framers of the Fourteenth Amendment did not intend (or expect) it to forbid most forms of sex discrimination, then arguments for sex equality under the Fourteenth Amendment were inconsistent with this first wave of originalism.

Partly in response to withering criticism, originalism morphed over time, so that most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text, rather than the concrete intentions and expectations of its framers and ratifiers. And because the original public meaning of the more open-ended clauses of the Constitution tends to be, well, open-ended, original-public-meaning originalism tends to be substantially less determinate than (at least the claims that have been made for) old-style original intent. Originalists solved the problem of seemingly having to support a view of the Constitution that allows official sex discrimination and other unacceptable practices by sacrificing determinacy.

Except that most original-public-meaning originalists cling to determinacy as a virtue. They no longer claim that originalism is close to fully determinate, but they still frequently claim that it is substantially more determinate than other approaches to constitutional interpretation. This claim is empirically testable. If originalism were a methodology that constrained justices, one would expect that a justice who practiced originalism would be somewhat ideologically unpredictable. And yet, as I shall explain, originalism in practice is predictably conservative.

At Legal Theory Blog, Larry Solum has three responses (so far).  From the first

Dorf offers a critique of originalism, but he does not defend any alternative (or set of alternatives).  For reasons that will become apparent, this way of proceeding is problematic.  The question for constitutional theory is not originalism or not originalism: the relevant question is whether originalism is better than the alternatives.  This means that evaluation of originalism should proceed by the method of pairwise comparison.

Pairwise comparison requires that originalism be compared to the alternatives: originalism versus common law constitutionalism, originalism versus pluralism, originalism versus moral readings, and so forth.

For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case.  He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology.  For some alternatives, it seems obvious that originalism would be more constrain--even if originalist judges are highly imperfect.  For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records.  Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.

From the second:

Many constitutional provisions are framed in language that is general and abstract.  For example, the constitutional text uses the phrases "cruel and unusual punishment," "unreasonable searches and seizures," and "equal protection of the laws."  The contemporary understanding of these phrases does support Dorf's view--that they are "open ended" and hence "substantially less determinate."  But it is not clear that the original meaning of the phrases is as underdeterminate as the contemporary meaning.  John Stinneford's work on the Eight Amendment suggests that the original meaning of "cruel and unusual" is actually quite thick--as does Laura Donohue's work on the Fourth Amendment.  Many originalists believe that the original meaning of the Equal Protection Clause was not a general principle of political, economic, and social equality, but was instead about the "protection of the laws," essentially a requirement that all persons (including the former slaves) receive the same protection for their persons and property as white citizens receive.  My own view is that there are a very few open-textured constitutional provisions, but that the indeterminacy of the original public meaning of the constitutional text has been greatly exaggerated.

Professor Solum's third post is about the study on which Professor Dorf relies to show (supposedly) that the Court's originalists have voted in a consistently conservative way.  (The data is from Stephen Jessee and Neil Malhotra, Public (Mis)Perceptions of Supreme Court Ideology A Method for Directly Comparing Citizens and Justices, 77 Public Opinion Quarterly 619 (2013)).  Professor Solum points out:

The values that Dorf relies upon were based on the votes by the Justices in [only] ten cases--although the authors say that similar values would obtain with a larger sample.  ...

Two of the cases were decided on nonconstitutional grounds.  That leaves eight cases in which the Justice Scalia and Justice Thomas voted on constitutional issues.  Dorf's argument is that their ideology scores in all ten cases are inconsistent with what one would expect from "honest originalism"--because Dorf has an intuition (without any empirical grounding) that "honest originalism" would have produced scores further to the left than those that appear in the chart that Dorf included in his post...

Two of the cases were decided on nonconstitutional grounds.  That leaves eight cases in which the Justice Scalia and Justice Thomas voted on constitutional issues.  ...

Of the eight cases that are constitutional in nature, only five following involved originalist reasoning by Scalia or Thomas.  ...

And further:

Let us assume that the ideology scores for Scalia and Thomas would have been the same if the three nonconstitutional cases and the two constitutional cases in which originalism did not play a role were excluded.  Can we reach Dorf's conclusion, that Scalia and Thomas vote more conservatively than would be expected on the basis of "honest originalism" on the basis of a sample of five cases?  Moreover, Dorf's argument is based on generalization from the behavior of two Justices?  Can be generalize about originalist judges in general based on a sample size of two?

The question answers itself.  A sample of two justices in five cases is simply too small to warrant any empirically valid generalizations about the question as to how originalist judges will behave in general.


In addition to the small N problem, there is a second reason to question Dorf's use of the Jessee and Malhorta study. Dorf simply assumes that the ideology score of a fair-minded originalist judge would be to the left of the scores that Jessee and Malhorta's study assigned to Scalia and Thomas.  This assumption appears to be based solely on impressionistic guess or intuition by Dorf.  There is no empirical basis for this assumption.

(These posts are too complex to capture all of their points in a few excerpts).

UPDATE:  The fourth and final post from Larry Solum is here. From the conclusion: 

Without doubt, a thoroughly originalist constitutional future will not be achieved in a few years or even a decade or two.  When James Thayer and other constitutional progressives began to advocate their vision of a constitutional future in the early Twentieth Century, its ultimate realization was many decades away--and when it came, it looked quite different than they had imagined.  The tasks of originalist constitutional theory today are similar in difficulty and scope to those faced by the anti-formalist progressives more than one-hundred years ago.  The debate over originalism on the intellectual merits continues and its ultimate outcome is not easy to predict.  But of one thing I am certain.  The case against originalism cannot be made in the way that Michael Dorf attempted in the post that prompted these comments.  Dorf's account of originalism's past is deeply flawed.  His account of originalism's future is based on flimsy assumptions and unsupported speculation.

It goes without saying that originalism's future will not be determined by scholarly debate.  Constitutional practice may be influenced by ideas, but it is even more powerfully influenced by politics.  Scholars can create the intellectual infrastructure that creates the possibility of a constitutional theory like originalism, but originalism's future ultimately depends on political forces that are outside the control of scholars.


Mark David Hall and Emily-Lynn Warren on Patrick Henry’s Impact on the Declaration and the Constitution
Michael Ramsey

Mark David Hall and Emily-Lynn Warren at Liberty Law Blog: The Fiery Patrick Henry. From the introduction:

In 1775, a 36-year-old named Patrick Henry swung the balance of the Second Virginia Convention with these words:

Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

This impassioned statement, with its famous concluding phrase, convinced the delegates to commit troops to the War of Independence. Henry dominates the American imagination as a fiery orator and champion of independence.

Jurists and scholars interested in church-state relations often remember him for his proposed “Bill Establishing a Provision for Teachers of the Christian Religion” (1784), a purportedly illiberal scheme to create an established church that was defeated by a coalition of enlightened liberals and religious dissenters. But Henry—the sixth in the present series on the Founders’ debates on matters of church and state—was actually one of the most effective advocates of religious liberty during the formation of the new country. He was, moreover, far more prescient about the threats to liberty posed by the federal Constitution of 1787 than many Founders.


Dakota Rudesill: The Land and Naval Forces Clause
Michael Ramsey

Dakota S. Rudesill (Ohio State University - Michael E. Moritz College of Law) has posted The Land and Naval Forces Clause (University of Cincinnati Law Review, Vol. 86, 2017) on SSRN. Here is the abstract:

What is the best constitutional textual basis for key statutes that constrain the national security apparatus and the President’s control over it – statutes that are not spending limitations, nor force authorizations, nor militia laws? There are a series of such statutory frameworks, including the Uniform Code of Military Justice (UCMJ), Posse Comitatus Act and its relatives (particularly parts of the Insurrection Act), Foreign Intelligence Surveillance Act (FISA), the covert action statute, anti-torture laws, and the War Powers Resolution. The best textual footing for these statutes, this article argues, is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” Although the common assumption is that this Land and Naval Forces Clause is a single enumerated power, this article theorizes the Clause as providing Congress two powers: a well-recognized Internal Regulation power over military justice and discipline and arguably other administrative matters, and also an External Government power over operations. This article analyzes the Clause’s text, counter-authoritarian purposes, and its constitutional interpretation since the Founding Era. It argues for the Clause’s constitutional rediscovery and embrace as the primary textual hook for a series of vital statutory frameworks that govern the military and intelligence apparatus at the intersection of liberty and security, and regarding the use of force domestically and internationally. Ultimately, the Clause’s power is contingent: Congress must use it and other legal actors give life to its statutes for it to be meaningful.



Donald Dripps: Due Process: A Unified Understanding
Michael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted Due Process: A Unified Understanding (The Cambridge Companion to the Constitution, (Cambridge University Press, Forthcoming) on SSRN.  Here is the abstract:

This chapter, contributed to the forthcoming Cambridge Companion to the Constitution, explicates the role of the due process clauses in U.S. constitutional law. The concept of due process is traced from English origins through recent Supreme Court Cases, including Obergefell v. Hodges, Johnson v. United States, and Ohio v. Clark. Throughout American history, jurists have agreed that due process consistently forbids deprivations by government without ex ante legal authorization and fair procedures for applying the justifying law. They also have agreed that deprivations, legality and fairness are not whatever legislation says them to be. Beyond that, there has been no consensus about the meaning of these core concepts. Indeed, partisans on opposing sides of many great American controversies have invoked due process. What these partisans have disputed, however, is the nature of life, liberty, property, legality or fairness, not the nature of due process. Analytical focus on the constituent concepts can help us better understand these disputes.

And from the introduction:

A recent term of the U. S. Supreme Court provides a characteristic assortment of due process decisions. The Court relied on the denial of due process in one case to invalidate state statutes that precluded same-sex marriage; in another, to hold void-for-vagueness a clause in the federal Armed Career Criminal Act. In still another, the justices ruled that that the Sixth Amendment’s confrontation clause did not bar the use as evidence of a hearsay declaration from a child too young to be a competent witness in court. Apart from the fact that due process figured into each decision, the three seem utterly disparate. How is same-sex marriage connected to whether a federal criminal statute is clear enough to count as law or to a defense attorney’s inability to crossexamine a child witness? In this essay, I will explain that these instances appear as unlike each other as they do because each illustrates a distinctive component of the due process guarantee.

The distinction between “procedural” and “substantive” due process, which may be familiar from other commentaries, forms only a subset within the first component of the definition offered here. That is, every due process claim begins with a deprivation, specified in the Fifth and Fourteenth Amendments to be a deprivation of “life, liberty or property.” Second, to constitute due process, the deprivation must have been authorized prospectively, by valid law. And third, due process requires that the deprivation be accomplished along with a fair hearing about whether the law, though valid, also applies to the case at hand. At the risk of asserting a negative, I know of no American judge who does not accept this basic description of due process.

Typically, the plaintiff claiming a constitutional violation will insist that there has been a deprivation, but components two and three have not been complied with. The government, on the other hand, will deny the existence of a deprivation altogether, or, if it admits one occurred, it will argue that the second two components were present. The constitutional text, coupled with the practice of judicial review, means that to the extent that ordinary statutes were the instruments of denial they may be declared void. The canonical examples are a statute purporting to transfer the estate of one private person to another and a statute assigning one party in a lawsuit to be judge in her own case. In short, "life, liberty, and property," legality, and procedural fairness are not whatever it is that the legislature decrees.

The discussion below proceeds in four stages. First, we consider the origins and analytical structure of the Fifth Amendment due process clause. Second, we trace the evolution of its constituent concepts in antebellum America. Third, we consider how the Fourteenth Amendment altered the legal and institutional ecology of constitutional interpretation in the years between the Civil War and the Second World War. Fourth, we explicate how the Supreme Court, in the second half of the twentieth century, invoked due process to expand, and to unify, the scope of individual rights against both federal and state abridgement.

We close by returning to the cases referred to at the outset, which we will identify as Obergefell, Johnson and Clark. At issue in Obergefell was the nature of “liberty.” The sole issue in Johnson was the nature of valid "law.” In Clark the issue concerned the meaning of fair "process.” Each decision may one day be reversed; there were dissents in Obergefell. Both Johnson and Clark reversed the decision immediately below. Judicial error, it must be emphasized, differs categorically from judicial usurpation. The courts have always denied that liberty, property, legality and fairness mean whatever legislatures say they mean. If that premise is sound, what divides justices (and their critics) is precisely how to formulate such capacious concepts as due process, not whether to do so is the courts’ constitutional duty.


A Response to Eric Segall
Ilan Wurman

[Editor's note: for this guest post we welcome Ilan Wurman, Nonresident Fellow at the Stanford Constitutional Law Center and an attorney in Washington, D.C.]

Eric Segall’s review of my new book, A Debt Against the Living: An Introduction to Originalism, is generous at times and sharp at others. I thank him for both. I tease out two significant criticisms from his review, which I’ll tackle in reverse order.

Segall writes that I am “elusive” as to how “liquidation”—the idea that the Founders expected indeterminacies in constitutional meaning to be resolved through a series of discussions and adjudications—is different from something like David Strauss’ common law constitutionalism. He writes, moreover, that because I believe the “sense”—that is, the original meaning—of a constitutional provision is what matters rather than the original expected applications of that provision, I am really just describing “common law constitutionalism and living constitutionalism all the way down.”

Liquidation, however, is inconsistent with the judicial role required by a nonoriginalist theory like Strauss’s. Liquidation recognizes that there are indeterminacies in the Constitution’s meaning; it would be crazy not to. And this recognition is key: there must be an indeterminacy for liquidation to apply at all. Nonoriginalist judges and certainly scholars, on the other hand, often openly avow that nonoriginalist meanings can trump the original meaning of the Constitution even when that meaning is clear. Not so for liquidation, and not so for originalism. If nonoriginalists are on board whenever the original meaning is clear, then I suppose I’ve misunderstood nonoriginalism, and living constitutionalism and originalism are even closer than I had thought.

More still, liquidation requires a series of discussions and adjudications across all three branches of government and perhaps even the states themselves before indeterminate constitutional meaning can become fixed. In contrast, judicial supremacy, advocated by most nonoriginalists and a fact of life today, would terminate all such discussions and adjudications as soon as the judicial branch has spoken.

The second significant criticism—and really, this is related to the crux of all nonoriginalist criticisms of originalism—is that I did not sufficiently address “the exclusion of women and minorities from the ratification process,” because even if the Constitution “was as legitimate as could be for its time,” the question, Segall writes, “is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.”

What I intended to convey to my readers is that the Constitution isn’t legitimate (or illegitimate) solely based on the composition of the group of individuals who framed or ratified it. The first and most important requirement for the Constitution’s continuing legitimacy today is that it continue to accomplish what a constitution for a free society must accomplish: enabling our right to self-government on the one hand, and ensuring sufficient protections for our natural liberties on the other. These two competing ends of government are in tension with each other, and, as Burke once said, it takes a powerful and combining mind to balance them successfully.

Our original Constitution—particularly as it has been perfected with subsequent amendments—balances these two ends remarkably well.  It does so by creating a regime of self-government that, through ingenious mechanisms like the separation of powers, checks and balances, the representative mechanism, the division of federal and state power, the enumeration of power, and the bill of rights, channels our exercise of self-government in ways that remedy the vices inherent in popular regimes.

This original constitution continues to be legitimate because it continues to balance these ends remarkably well. Indeed, one of the key virtues of our original Constitution is that it did not actually do or require very much. The Framers protected only those rights most essential to the success of a free society, leaving the rest to the democratic process because they knew we would evolve and progress over time.

So we come back to the criticism of the Framers. The position I take in the book, perhaps less clearly than I had hoped, is that it is not a good reason to exclude the Framers’ accomplishment from our recognition today merely because they were all white and male and many of them were slaveowners. After all, we don’t celebrate the Framers for any of those reasons. They did not invent slavery, the exclusion of women, or the exclusion of the poor, which had been universal. The Framers’ achievement was quite different: Their achievement was creating a regime of self-government committed to the principle of equality under law, and that successfully balanced the competing ends of government. It was framing a constitution that abolished property requirements for federal office, and that abolished hereditary privileges and titles of nobility.

If the Framers’ slaveowning and exclusion of women were sufficient reason to ignore their achievement, then all past acts—even those that continue to redound to our great benefit today—would be illegitimate so long as some voice in society that we now recognize as important was not sufficiently heard in the past. In the book, I used the example of the Civil War amendments. Were they illegitimate because women could not yet vote? That would be absurd. They were legitimate whether or not women could then vote, because these amendments accomplished good and just things in the world—they were improvements made by the dead, as Madison would have said, that continue to form a debt against the living today. The exclusion of women, which was not peculiar to American society in any way, is not a good enough reason to consider the Civil War amendments nonbinding.

The exact same argument can be made about the Constitution. In my view, the Constitution would be unworthy of our allegiance today only if the act of framing and ratification was thoroughly unjust for its time, or if it failed today to do what a free constitution has to do. I think neither condition prevails. So long as our original Constitution reasonably balances our right to self-government and our natural liberties, even if it doesn’t achieve everything one might want—and despite the flaws of its Framers—it achieves enough to continue forming a debt against the living today.