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06/01/2020

Charles Barzun on Originalism as Our Law
Michael Ramsey

At Balkinization, Charles Barzum (Virginia), guest-blogging:  An Unoriginal Joke, Part I.  He begins:

Sometimes parody reveals more truth than even the parodist intended.  Last week I tweeted what was meant as an offhand joke about originalism but which was taken seriously by some.  But those who did take it seriously sparked a debate that ended up being fruitful in a way I had not remotely foreseen.  Eventually I’d like to say more about that, but first I want to state more explicitly the point I was trying to convey.
 
The joke was this: I wrote, “I have a new theory of constitutional law. I call it ‘living constitutionalism.’ It claims that the Const. has been interpreted by the Court in different ways at different times.  It is thus a ‘living’ doc. Living Constitutionalism is our law and judges take an oath to support it.”  I then spelled out the syllogistic argument that proved we have a living constitution:
 
P1: Texts whose interpretations change over time are “living.”
P2: The Constitution is a text whose interpretation has changed over time.
C: Therefore, the Constitution is a living text.
 
The joke probably only made sense to those who have been following recent debates about constitutional originalism.  In case you have not been following them so closely, here’s a quick synopsis of the dialectic, which conveys something of its frustratingly shape-shifting quality:
 
Originalist: This just in: It turns out originalism is our law.
 
Critic: Huh? No, it’s not — it’s rejected by a majority of the Supreme Court and most federal judges!
 
Originalist: No, I don’t mean Bork’s or Scalia’s kind of originalism.  I just mean that we think our Constitution began at the founding and there have been no revolutions since.  Like in the way that Anthony Kennedy is an originalist.
 
Critic: Oh, okay, I guess, but then… what’s the point, exactly?  Besides, even that claim seems to require defending a theory of law.
 
Originalist: No worries, we’ve got that.  See Hart, etc.  Also, the judicial oath proves that originalism is true.
 
Critic: Wait, what?
 
Originalist: Well, judges swear to uphold “the constitution,” right?  And that’s the same Constitution President Washington swore to uphold, no?  So when judges swear to support and defend the Constitution, that is the same constitution as “this constitution” that Article VI makes the supreme law of the land. Therefore, originalism is true.
 
Critic: So judges who aren’t originalists are breaching their oaths and are thus impeachable?! That’s crazy! And question-begging and circular.  At the very least, it depends on what you mean by “same.”
 
Originalist: No, not impeachable, just mistaken is all.  To understand, you really oughta bone up on your philosophy of language, from Frege to David Chalmers’ latest work.  Anyway, all I’m saying is that IF originalism is our law, then judges have a duty to uphold it.
 
Critic: Oh, okay.  But then if living constitutionalism is our law, then judges have a duty to uphold a living constitution.  But that’s the whole issue in dispute.  So, to repeat, what’s the point of all this again?
 
And from later on:
 
I think originalists genuinely believe that it matters that even liberal judges and scholars pay lip service to the framers and strive, whenever possible, to render their constitutional views consistent with original understandings.  See, e.g., virtually every liberal law professor’s constitutional argument for impeaching Trump.  The originalists think it matters that there is an “official story” of our constitutional order that traces back to the founding and that judges promise to take that story seriously when they decide cases.
 
If that is right, then my question is not about the propositions these facts are marshalled to establish, but rather the perceived stakes involved in doing so.  Why does it matter that these features are part of our constitutional practice?  The answer cannot simply be that they reveal originalism to be true, because there are lots of truths that don’t generate articles, conferences, blog posts and op-eds devoted to establishing them.  Is it because the ideal of the rule of law requires a hierarchal structure of authoritative rules, without which there would be chaos?  Is it because the founders were particularly wise or virtuous and so deserving of deference, even if only superficially?  Is it because a constitutional order requires, for its survival, some consensus, however thin, about such origin stories?  Something else entirely?
 
I think what is frustrating to many observers of, and participants in, recent debates in constitutional theory is the sense that the answers to these questions (whatever they may be) are doing the real work in the arguments for originalism.  Yet they are rarely articulated.  They underlie the choice of premises but make no appearance in the syllogisms.  Maybe if they were brought out and acknowledged, the debate could be more meaningfully advanced.