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CHICAGO
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 09
Common Law, Common Ground,
and Jefferson’s Principle
David A. Strauss
THE LAW SCHOOL
THE UNIVERSITY OF CHICAGO
DRAFT 13 Apr
Please do not cite or quote without permission
Common Law, Common Ground, and Jefferson’s Principle
David A. Strauss
*
“The earth belongs to the living”
“The earth belongs in usufruct to the living,” Thomas Jefferson
famously wrote from Paris in 1789, in a letter to James Madison. “The
question [w]hether one generation of men has a right to bind another,
seems never to have been started [sic] either on this or our side of the
water,” even though “it is a question of such consequences as . . . [to] place .
. . among the fundamental principles of any government.” Jefferson’s
answer to the question, of course, was no. “We seem not to have perceived
that, by the law of nature, one generation is to another as one independent
nation is to another.”
1
Therefore, Jefferson said, “[e]very constitution . . . and every law,”
should “naturally expire[] at the end of 19 years.” (Jefferson elaborately
calculated, on the basis of life expectancies at the time, that a majority of
people 21 and older would die within 19 years, and concluded that that was
*
Harry N. Wyatt Professor of Law, the University of Chicago. This paper is adapted
from a chapter in a book in progress on common law constitutional interpretation. I am
grateful to participants in workshops at the University of Michigan, University of
Pennsylvania, University of Chicago, and Yale Law Schools for their comments on
various versions of this paper.
1
Letter of Sept. 6, 1789, to James Madison, reprinted in xxx.
2
the best measure of a generation’s life span.
2
) If any law “be enforced
longer, it is an act of force, and not of right.”
3
Jefferson’s argument, in some form, goes back at least to Hume’s
essay Of the Original Contract. It was a repeated refrain of Thomas
Paine’s. Many others besides Jefferson made similar arguments at the
time of the drafting and ratification of the Constitution; Noah Webster
ridiculed Jefferson for not holding the principle more consistently.
Jefferson’s principle remains, today, the central challenge to written
constitutionalism—indeed perhaps to more than that, since much ordinary
legislation is the product of earlier generations too. Jefferson’s argument is
the starting point for many discussions about the nature of
constitutionalism.
4
But to this day it is not clear how to answer Jefferson’s
argument. “This principle that the earth belongs to the living, and not to the
dead is of very extensive application and consequences in every country,”
Jefferson said. In our own legal culture, the questions are, among other
things, why the generations who drafted the Constitution of 1787, or the Bill
of Rights, or the post-Civil War amendments to the Constitution have a
right to rule us today. Specifically, why do we care about their intentions,
which are generally thought to have some importance to current
constitutional controversies? And, more pressing, why do we even care
about the documents they adopted, which everyone today would
acknowledge to be in some sense authoritative?
2
See Letter of July 12, 1816, to Samuel Kercheval, reprinted in xxx; see also Letter of
Sept. 6, 1789.
3
Letter of Sept. 6, 1789.
4
Eg most of the essays in Larry Alexander, ed., Constitutionalism
3
Commands and Intergenerational Obligations
In the American constitutional tradition, most the answers that have
been offered to these question take one of two general forms. One kind of
answer asserts that the decisions of the earlier generations bind us in
essentially the way that an order from a bureaucratic superior binds a
subordinate.
5
Often this view seems to be not even asserted but assumed;
people try to uncover what the Founding generations, or subsequent
generations, thought about an issue, without explaining why that would be
significant today.
A second, more complex kind of answer relies not so much on a simple
model of superior and subordinate, but rather on a conception of
intergenerational identity. We owe “fidelity” to the earlier generations
because we live in the same political community, extended over time, as
they. Just as part of being an American is acknowledging obligations of
mutuality with others who live today, so part of being an American is to
maintain continuity with those generations. One way we do that is to
adhere, at least to some degree, to their decisions on questions of
constitutional law. Many theories take this second form; some meld aspects
of these two forms.
6
The first kind of answer, with its simple Austinian model—the
Founders were the sovereign, and their commands bind us—seems at first
glance just to refuse to engage Jefferson’s argument. But this approach
cannot be disregarded entirely. As Jefferson acknowledged, at least for a
5
E.g. Bork; Easterbrook; cf Posner. Also “translation?”
6
Ackerman; Dworkin; Rubenfeld?; see Waldron on community extended over
time. Melding?: Amar. Tushnet Foreword.
4
time a majority is entitled to rule. Any account of constitutional
interpretation has to explain the undoubted binding force of a
contemporaneous majoritarian decision.
The second kind of answer, asserting a conception of intergenerational
identity, is deeply woven into the way many people think about the
Constitution. It speaks to something important. There is undoubtedly a
human need, widely if not universally felt, to understand oneself as part of
an ongoing tradition and to have a connection to earlier generations. This is
often the way in which people understand themselves to be part of an ethnic
group or a religious tradition. Many accounts that are implicitly offered to
answer Jefferson’s objection provide conceptions of what it is to be an
American, conceptions that include fidelity to earlier generations’
decisions about the Constitution.
But the analogies to religious and ethnic identity ought to give us pause
about using this kind of explanation for the binding character of the
Constitution. People alive today in the United States, or any other
reasonably heterogeneous community, will define the tradition to which
they belong in different ways. Especially in view of the changes that have
occurred over time, both immigration and the enfranchisement of a larger
percentage of the population—changes that greatly exacerbate Jefferson’s
problem and that his account did not anticipate—relatively few people alive
today are even descended from the people who participated in the great
constitutional decisions of the past. Nearly all of us are being asked to
accept decisions made by someone else’s ancestors. We might choose to do
so, but it is difficult to see why people should be required to identify with a
tradition in that particular way.
5
To put the point anothe way, the justification for using a written
Constitution, and original intentions, should not be sectarian. It should—if
possible—not depend on a particular conception of what it is to be an
American. It should be something that can appeal to any reasonable
member of our society today, even to people who reject (if they have reasons
for doing so) the moral vision of earlier generations. The way to try to
develop such a conception, I believe, is to recognize that the intuitive appeal
of Jefferson’s principle—that no generation has a right to bind
another—rests, implicitly, on too narrow a view of the role of law.
Specifically, it overlooks important ways in which the decisions of earlier
generations can be binding today even in the absence of any kind of
obligation of obedience—either the straightforward obligation of a
subordinate to a superior, or the more complex idea of “fidelity” to an earlier
generation. There are at least two other possible reasons why one might
care about what earlier generations did.
First, a decision made by an earlier generation might serve as a
precedent. In a common law system, precedents from earlier eras bind to a
degree. Nevertheless, the problem Jefferson identified is greatly
ameliorated in a common law system, or so I shall argue shortly. And the
justification for following precedent need not rely on any notion of
intergenerational identity or intergenerational obligation. There are
sensible reasons why any rational person would be reluctant to depart from
well-established practices that were endorsed, after due consideration, by
people in the past when they were confronted with similar issues.
Second, an earlier generation’s decision—especially when it is
embodied in an authoritative text—can serve as readily-accepted common
6
ground among people who otherwise disagree.
7
Sometimes, in the familiar
formulation, it is more important that things be settled than that they be
settled right. A legal provision can settle things, and sometimes the
importance of settlement alone is enough to make the provision binding.
The binding force of the provision rests on its functional ability to settle
disputes, and not at all on whether the entity that enacted the provision is
entitled to obedience or “fidelity.”
Accepting the common law and common ground answers to
Jefferson’s argument does not require one to reject the other kinds of
answers that have been offered. In particular, the common law and
common ground arguments are not inconsistent with the notion of
intergenerational identity—the idea that part of being an American is
honoring the decisions of earlier generations of Americans. One can hold a
particular view of the importance of the Constitution in defining American
identity and also accept the common law and common ground
justifications. In fact, an intergenerational conception of the political
community provides an additional reason for accepting those justifications.
A conception of English identity was an important part of the early common
lawyers’ ideology.
8
But the common law and common ground justifications do not depend
on any particular conception of American identity, any more than one has
to accept the common lawyers’ elaborate ideas about “the ancient
constitution” of England in order to accept the common law of property or
contract. The common law and common ground justifications for
7
See, e.g., Michelman in Alexander, ed.
8
See, e.g., Pocock, The Ancient Law and the Constitution.
7
constitutional obligation rely on arguments that should appeal to all
reasonably members of the political community. The idea here is, of course,
Rawls’s notion of the “overlapping consensus”: people who have different
ideas about intergenerational obligation, or American identity—or who
reject such notions altogether—should still be able to say that the common
ground and common law justifications make sense.
In this paper I will try to develop the common law and common
ground justifications for adhering to the decisions of earlier generations.
These justifications, I think, answer Jefferson’s question in a way that does
not require people to accept a controversial conception of American quasi-
ethnic identity. But these justifications also do not require people to be
skeptical about such conceptions. People can go in different directions when
they define “what it is to be an American,” while all accepting the common
law and common ground justifications for adhering to the Constitution.
That is the aspiration, in any event.
On a more concrete level, I will reach a few specific conclusions that
might seem odd at first glance but that in fact are both plausible and fully in
accord with our established practices. In fact, it is a strength of the
common law and common ground justifications that it supports aspects of
the legal culture that seem firmly rooted but that are very difficult to
explain. For example, I will defend what might be seen as a kind of verbal
fetishism: an attachment to the specific language of the Constitution, even
if the language is being used for purposes that are unquestionably at
variance with those of the people who drafted the language. I will also
defend what is commonly called law-office history: the selective use of
historical sources to support a conclusion reached on other grounds, as
8
opposed to historians’ history—a genuine effort to understand, in context,
an earlier time. I will also suggest that, in interpreting the Constitution,
the text of the document matters most for the questions that are least
important. Finally, I will defend a version of Jefferson’s view of
majoritarianism: the idea is that a majority’s decision governs for a while,
but recedes as time passes.
Why Not Sunset?
Before doing so, it is worth considering Jefferson’s own solution—that
there should be an automatic sunset provision applied to all laws. In fact
this solution only makes things worse. But at the same time it reveals two
important things about the structure of the problem that Jefferson posed: it
can be solved only by introducing an intertemporal element into
interpretation, and that intertemporal element must be able to operate
gradually over time.
The immediate difficulty with Jefferson’s sunset solution is that it is
hard to see how one can specify a non-arbitrary term of years for a provision
to remain in effect. Jefferson’s calculation that the magic period is 19 years
is quite strange. But this difficulty is derivative of a deeper problem: What
should the law revert to after a provision has expired? The law that existed
before the provision was adopted is the product of an even earlier
generation; there is, if anything, even less reason to impose that earlier law
on the current generation. Ideally, after a provision expires, the law should
become something that the current generation itself endorses. But how do
we determine what that is?
9
Jefferson himself explained why it is so difficult to keep the law up to
date, in the course of rejecting the argument that “the succeeding
generation[’]s . . . power [to] repeal” a provision “leaves them as free as if
the constitution or law had been expressly limited to 19 years only.” The
power to repeal a law does not protect a later generation from the
impositions of an earlier generation:
[T]he power of repeal is not an equivalent [to mandatory expiration].
It might indeed be if every form of government were so perfectly
contrived that the will of the majority could always be obtained fairly
and without impediment. But this is true of no form. The people
cannot assemble themselves. Their representation is unequal and
vicious. Various checks are opposed to every legislative propostion.
Factions get possession of the public councils. Bribery corrupts them.
Personal interests lead them astray from the general interest of their
constituents; and other impediments arise so as to prove to every
practical man that a law of limited duration is much more
manageable than one which needs a repeal.
These familiar problems of legislative intertia and public choice will
plague efforts to replace an expired law with something reflecting the
current generation’s views. Perhaps even after much more than
Jefferson’s 19 years, a majority of the society—composed of some survivors
of the older generation that voted on the law and some members of the new
generation that did not—want the old law to continue in effect. Or perhaps
the view of the new majority is that the law should be modified, but not
wiped from the books. The Civil Rights Act of 1964, for example, must be
viewed today as the product of an earlier generation, and not just in a
chronological sense. But simply “sunsetting” the Act—reverting to the pre-
1964 status quo—would surely be less in keeping with the current
generation’s views than the 1964 Act is. Given the problems Jefferson
identified with relying on repeals, we could not view the failure to reenact
the old law as a reliable indication that a current majority rejects it. And,
10
for similar reasons, there is no obvious way to ascertain how the current
generation would like to modify the Act.
The failure of the sunset solution has two important lessons, however.
One is that the core of Jefferson’s principle is not affected: even if a
mandatory sunset is not the solution, the problem of one generation ruling
another remains. The second is that the interpretation of laws should not
change abruptly. Not only to generations not change abruptly, but the work
of a previous generation does not leave the scene when it does; changes that
generation has brought about in the culture will remain. “Historic
continuity with the past is not a duty; it is merely a necessity.”
9
Both the
common law and the common ground arguments try to meet these
requirements: they preserve the work of the past, but only to the extent that
it either must, unavoidably, or should be preserved, and while permitting
gradual adaptation.
Common law
The common law method, roughly speaking, justifies legal decisions
by relying on previous decisions. Those decisions can be judicial decisions,
but they need not be. Many important constitutional issues, such as those
arising between the President and Congress, are seldom litigated in court.
In disputes over the scope of the President’s power to commit troops abroad
or to withhold documents from Congress—disputes that arise frequently
but have never been finally decided by the Supreme Court—past practice
9
Holmes?
11
plays a crucial role. The use of the Watergate precedent in the recent
impeachment debate is another example.
Of course it is not obvious in theory, and often not clear in practice,
what it means to follow a precedent. Just as important, a central feature of
the common law method is that rules derived from precedents need not
always be followed. They can be modified or even overruled in order to make
them better as a matter of morality or policy. This is a familiar aspect of the
common law: precedent controls in a general way, but in determining what
precedents require, or how far they are to be extended or cut back, or
whether they are to be overruled entirely, inevitably requires one to make
judgments of morality or social policy. Cardozo gave this description, in the
twentieth century’s best account of the common law method:
The final cause of law is the welfare of society. The rule that
misses its aim cannot permanently justify its existence. . . . I do not
mean, of course, that judges are commissioned to set aside existing
rules at pleasure in favor of any other set of rules which they may
hold to be expedient or wise. I mean that when they are called upon to
say how far existing rules are to be extended or restricted, they must
let the welfare of society fix the path, its direction and its distance.
10
Because it is based on precedent, the common law approach might be
thought to be beholden to the past, and therefore, at first glance, might
seem especially subject to Jefferson’s objection. Paine’s principal target
was not written constitutions but the kind of traditionalism that has an
affinity to the common law approach; his bete noir was Burke, who
borrowed extensively from the common lawyers. But in fact the common
law approach is, if anything, relatively well-suited to resist Jefferson’s
argument.
10
Benjamin N. Cardozo, The Nature of the Judicial Process 66-67 (Yale Univ. Press
1921).
12
For one thing, the practice of following precedent can be justified in
fully functional terms, without relying on a controversial conception of
national identity or intergenerational obligation. The most familiar
justification is derived from Burke (although there is much else going on in
Burke as well). In modern terms, the basis of this justification is that
human rationality is bounded. The problems confronted by the legal system
are complex and multi-faceted; an individual’s capacity to solve them is
limited. It therefore makes sense to take seriously what has been done
before, both because it may reflect an accumulation of wisdom that is not
available to any one individual and because it provides a storehouse of trial-
and-error information on how the problems might be solved.
It would be a mistake, though, to think of the common law approach as
necessarily relying on a particular, Burkean, ideology. The core of the
common law approach is that one builds on what has been done before,
discarding it when reflection suggests that it is wrong but only after
according it a presumption of correctness. This approach has deep
epistemic roots, and one need not be a Burkean conservative, in any form, to
accept it. William James, for example, offered an account that even echoes
Burke’s metaphors:
The individual has a stock of old opinions already, but he meets a
new experience that puts them to a strain. Somebody contradicts
them; or in a reflective moment he discovers that they contradict
each other; or he hears of facts with which they are incompatible; or
desires arise in him which they cease to satisfy. The result is an
inward trouble to which his mind till then had been a stranger, and
from which he seeks to escape by modifying his previous mass of
opinions. He saves as much of it as he can, for in this matter of belief
we are all extreme conservatives. So he tries to change first this
opinion, and then that (for they resist change very variously), until at
13
last some new idea comes up which he can graft upon the ancient
stock with a minimum of disturbance to the latter. . .
11
The same idea is found in Quine’s “maxim of minimum mutilitation.”
12
The common law approach—starting with “old opinions,” and building on
them when, and to the extent that, they seem wrong—may reflect not just a
familiar feature of our legal culture but something deep in human reason.
In any event, in the common law, every precedent can be reexamined
and modified. Nothing from the past is automatically binding. In addition,
unlike Jefferson’s sunset solution, which supposes that generations end
abruptly, the common law approach parallels the gradual succession of
generations.
13
This is obviously not a foolproof way of solving Jefferson’s
problem; like any ideal theory of how law should be made or a society
governed, it has to grapple with institutional issues. Perhaps, if the
objective is to keep in the law in touch with popular sentiment, the principal
responsibility for applying common law principles under an enacted
provision should rest with officials who are more accountable to the
electorate than judges usually are. This may be the way to understand
various doctrines of deference to administrative agencies in statutory
interpretation. In general, it will be very difficult to get a reliable empirical
answer to the question of how much power unelected officials should have
to enforce a constitution. Perhaps the most we can say is that in the
American system, it seems settled that judges will play a prominent role,
11
“What Pragmatism Means”
12
Web of Belief? See Lisa vanAlstyne, Aristotle’s Alleged Ethical Obscurantism, 73
Philosophy 429 (1998), to which I am indebted, on these points.
13
In one of Jefferson’s famous later letters, in which he again endorsed periodic
revisions of the Constitution, his remarks even took on a common-law like tone, calling
for “wisely yielding to the gradual change of circumstances” and “favoring progressive
accommodation to progressive improvement.” Letter of July 12, 1816.
14
and that that it is not obvious that that apparently settled practice should be
overthrown.
The common law approach might be challenged on a different ground:
it might be said that judges or any other officials who purport to follow a
common law approach will be more likely to act out of self-interested or
other improper motives than officials who simply try to follow the will of
earlier generations. Perhaps the consequences of such self-interested
action are so severe that we are better off having officials believe that they
should allow the earlier generation to rule us.
14
But that argument does not
seem especially plausible. In principle the common law approach, unlike
an approach that treats the decisions of earlier generations as permanently
binding, provides at least a partial answer to Jefferson’s objection.
Moreover, to the extent we are committed to having judges play a central
role in enforcing the Constitution, it is a virtue of the common law
approach that common law—unlike detailed historical investigation—is
one thing that judges are trained to do.
Constitutional law as a common law system
For the most part our constitutional law has solved Jefferson’s
problem by becoming a common law system. In area after area, the law is
determined by precedents.
15
The dispute in controverted cases is over the
14
Scalia, Originalism.
15
In what follows I will discuss mostly constitutional law, although Jefferson’s
principle obviously applies to statutes too. I believe many of the things I say about the
Constitution can also be said about statutory interpretation. The principal differences are
that many statutes are more recent, and therefore the Austinian justification for obedience
applies, with its implications for interpretation; and that much of the common law-like
updating of statutes is done by administrators, not just by courts.
15
best reading of the precedents, and over what is fairer or more sensible
policy. This is true, for example, of the constitutional law governing
freedom of expression, race and gender discrimination, property rights,
procedural due process, federalism, capital punishment, police
interrogation, the limits of congressional power, implied fundamental
rights, the “case or controversy” requirement in the federal courts, state
power over interstate commerce, state sovereign immunity—the great bulk
of current constitutional litigation.
In all of these areas, there is almost never a contested case in which
the text of the Constitution actually plays a role in the arguments or the
decision.
16
The language of the provision often plays the ceremonial role of
being quoted, followed by words to effect of “this Court has interpreted this
provision to mean . . .” Then the real advocacy or opinion-writing, focusing
on the precedents, begins. One could conduct a thought experiment:
suppose the text of the Constitution were to be declared off-limits to
advocates and judges, in the way that courts’ local rules often forbid the
citation of unpublished orders. In all of the important areas of
constitutional law that I have mentioned, very little, if anything, would
change.
The constitutional law governing freedom of expression is an
illustration. Today this law consists of an elaborate doctrinal structure. One
asks whether a restriction on speech is content-based, content-neutral, or
incidental; whether the speech that is restricted is high-value or low-value;
whether the measure in question is a restriction or a subsidy. Depending on
16
These claims are defended in David A. Strauss, Common Law Constitutionl
Interpretation, 63 U. Chi. L. Rev. 877 (1996).
16
the answers, there are further tests to be applied. (If the speech is
incitement, a version of the clear and present danger test; if the speech is
defamatory, a version of the standard established by New York Times v.
Sullivan; and so on.) This entire body of doctrine is based in precedent, and
it has developed in a textbook common law fashion. The principles have
been worked out from case to case, modified and occasionally overruled,
elaborated as new cases presented new problems. The sole textual referent
is the famous clause of the First Amendment, which itself plays no
operative role in the decision.
The same pattern holds in all the other areas I mentioned. A lawyer
who needs to learn constitutional law in an area generally learns the cases
or, in some areas, the non-judicial precedents. Occasionally the historical
background—the Federalist papers, for example—is relevant; as I will
suggest below, that is not inconsistent with the common law approach. The
text of the Constitution seldom matters at all. In one of the most active
areas in recent constitutional law, the principles governing the
relationship between the states and the federal government, even some of
the Supreme Court’s most relentless advocates of relying on the text of the
Constitution have found themselves forced to concede that their conclusions
are based on something other than the text.
17
Of course in a wide range of
cases those same advocates of textualism, like everyone else, rely on the
precedents without mentioning or using the text, and without
acknowledging—or, probably, even being aware, most of the time—that
they are treating the precedents, not the text, as the real Constitution.
17
Printz, Seminole Tribe, Alden.
17
The common law and original understandings
Jefferson’s problem arises, of course, not just for the use of the text but
also for the use, in current controversies, of the original understandings of
provisions adopted long ago. Original understandings do play a role in
constitutional law. In fact, arguments based on evidence about original
understandings probably play an operative role in actual constitutional
arguments to a substantially greater extent than the text does. If you can
show that, say, James Madison would have disapproved of the independent
counsel statute, you have significantly advanced the case for the
unconstitutionality of the statute. One might think that that is just the kind
of ancestor-worship that Jefferson would have deplored. But on closer
examination, the use of original understandings in our current practice
conforms reasonably well to a common law approach.
On an Austinian view one would try to identify some sovereign, and
its, or their, intentions would be binding. But that is not how evidence of
original intentions is used in our system. Original intentions or
understandings (more on the ambiguity shortly) are sometimes, but rather
seldom, decisive. On several important issues, current law is at odds with
original understandings. Notoriously, the original understanding of the
Fourteenth Amendment was that school segregation was acceptable, at
least according to a near-unanimous consensus; and there is extremely
strong evidence, reflected in the text, that the Fourteenth Amendment was
never understood to outlaw gender discrimination or to affect voting
rights—all contrary to settled interpretations. There are many other
examples as well.
18
Also, it is quite unclear whose intentions or understandings matter. If
there is an Austinian sovereign behind the Constitution, it is probably the
people who attended the state ratifying conventions. So, at least, some
serious originalists have concluded.
18
But materials from the ratifying
conventions are cited indiscriminately with many other kinds of materials;
they have no special status. One can use Madison’s notes of the Convention
to good effect even though they were not available to the people who ratified
the Constitution. The Federalist papers are treated as an authoritative
source, although they were advocacy pieces that one would expect not to lay
bare the most controversial aspects of the Constitution. Statements of the
Framers are cited indiscriminately with those of prominent non-Framers
(like Jefferson) and those of participants in the state ratifying conventions.
Some Framers count for more than others; a good quotation from Madison
is worth a dozen statements from unknown members of state ratifying
conventions. On an Austinian view, the most important task would be to
identify the sovereign; only its, or their, intentions matter. If the objective is
to maintain our connection the the American People, defined over time,
then we should be careful to try to determine what the actual earlier
generations thought, not just what a few very prominent individuals
thought. But our actual use of historical evidence seems deliberately
insouciant about these very points.
The best way to understand this practice is again according to the
common law model. The views of members of the earlier generations are
being treated like precedents. We don’t carefully distinguish Framers and
18
See, e.g., Richard S. Kay, Adherence to the Original Intentions in Constitutional
Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, xxx (1988).
19
ratifiers because they all matter a little; those whose judgment we think we
have other reasons to trust, like Madison, count for more, in the way an
opinion by Holmes or Brandeis counts for more. Sometimes we accept these
views, sometimes we modify them, sometimes we just reject them—just as
with old precedents. Once the use of historical evidence is seen as an aspect
of a common law approach, rather than as a search for the will of a
sovereign, our current practices make much more sense.
Historians, understandably, often criticize the use of history in legal
controversies, saying that the legal use of history seems not to involve an
effort to reconstruct the climate of an earlier generation but rather a
picking and choosing of sources that will support a thesis that is arrived at
for other, normative reasons.
19
The characterization seems generally
accurate; the training of lawyers and historians is quite different. And as
much as legal academics do “law office history,” courts and advocates
—even the most historically sophisticated among them—are far worse. The
selectivity is overt, and the effort to arrive at a contextual understanding of
past times is all but nonexistent.
This is a persistent feature of the legal culture; there is no reason to
think lawyers and judges will stop using law-office history any time soon. If
the objective were to maintain fidelity or continuity with the normative
vision of earlier generations, it would be a scandal. Lawyers are constantly
reworking the alleged normative vision of earlier generations to serve their
own, present-day, purposes. The reason this is not a scandal is that legal
arguments don’t depend on a reconstruction of what earlier generations
19
Eg Rakove in Yale J L & Hum
20
thought—essentially for Jefferson’s reason.
20
They depend on making
selective use of the wisdom of the past, modified by normative
considerations, to address current problems. That is how lawyers use
history, and it is, for lawyers, an appropriate use.
Common ground and conventionalism
So far as the Constitution is concerned, then, it appears as though we
could say that, in our current practices, we are not truly bound by what
Jefferson’s contemporaries or any other previous generation did. We are
finding our own way. We pay attention to what has been decided before, but
we feel free to modify those decisions, especially if we do so incrementally.
Jefferson’s problem, if not completely solved, has been greatly ameliorated
because we never treat the decisions of the past as anything more than
advisory.
But one of the absolute fixed points of our legal culture is that no one
goes that far. In particular, no one says that the text of the Constitution
doesn’t matter or is only advisory. You cannot make an argument for any
constitutional principle without purporting to show, at some point, that the
principle is consistent with the text of the Constitution. And no provision of
the Constitution—even an indefensible one (like the requirement that a
President be a natural-born citizen)—can be overruled in the way a
precedent can, or disregarded in the way original understandings can.
On many important issues, the text is followed exactly, even when
substantial arguments can be made that the judgments reflected in the text
20
See also Michelman.
21
have been superseded. No one seriously suggests that the age limits
specified in the Constitution for Presidents and members of Congress
should be interpreted to refer to other than chronological (earth) years
because life expectancies now are longer, that a President’s term should be
more than four years because a more complicated world requires greater
continuity in office, or that states should have different numbers of Senators
because they are no longer the distinctive sovereign entities they once were.
This seems to reintroduce Jefferson’s puzzle. Why do we universally accept
that the words written by earlier generations are binding?
The answer is that we accept those words, not because we acknowledge
the authority of earlier generations over us, but because they serve as
common ground in the way I described earlier. This matters, potentially
greatly, because it affects how we interpret these words in controversial
cases. For Jefferson’s reason, the objective of interpretation is not—and
should not be—“fidelity,” in any meaningful sense, to the people who
drafted or adopted the Constitution. Their judgments, including the
judgments reflected in the words they adopted, are entitled to respectful
consideration as precedents, but no more; and we have overridden their
judgments on a number of important issues. Rather, the objective, in
interpreting the text, is to make sure that the text can continue to serve as
common ground. This can be called the conventionalist justification for
relying on the text. The text serves as a convention, a focal point of
agreement.
21
21
Many others have advanced a conventionalist justification for legal obligation.
Hume the locus classicus. See also Gauthier, Holmes, Raz, Schauer (who links it to text).
22
Conventionalism, as I said earlier, is a generalization of the notion
that it is more important that some things be settled than that they be
settled right.
22
Left to their own devices, people disagree about various
questions, large and small, related to how the government should be
organized and operated. In some cases, such as the President’s term of
office or the number of Senators, the Constitution provides answers. In
many other cases, the text limits the set of acceptable answers. This is true,
for example, of the features of the criminal justice system: although the Bill
of Rights and other provisions of the Constitution do not prescribe exactly
what a criminal justice system will look like, certain essential features
(juries, witnesses called by the parties, representation by counsel, trials
that are not held in secret or at a place remote from the crime) must be
present under any straightforward reading of the text. Even when the
constitutional provisions are quite open-ended, as in the case of the Religion
Clauses for example, having the text of the clauses as the shared starting
point at least narrows the range of disagreement.
People who disagree about a constitutional question will often find that
although few or none of them thinks the answer provided by the text of the
Constitution—either the specific answer or the limit on the set of acceptable
answers—is optimal, all of them can live with that answer. Moreover, not
accepting that answer has costs—in time and energy spent on further
disputation, in social division, and in the risk of a decision that (from the
point of view of any given actor) will be even worse than the decision
reflected in the text of the Constitution. In these circumstances, sometimes
22
See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (Brandeis, J., dissenting)
(“[I]n most matters it is more important that the applicable rule of law be settled than that it
be settled right.”).
23
the best course overall may be to follow the admittedly less-than-perfect
judgment reflected in the text of the Constitution.
The text, in this way, is “focal” in the game theorists’ sense. In a
cooperative game with multiple equilibria, the solution will often depend on
social conventions or other psychological facts. The most common
examples are deciding whether traffic should keep to the left or the right, or
who should call back if a telephone call is disconnected. These are games of
pure cooperation, but even when there is some conflict of interest, a focal
point—a solution that, for cultural or psychological reasons, is more salient
and therefore seems more natural—might be decisive.
In particular, some political disputes have roughly the structure of the
so-called “battle of the sexes” game: each side would prefer its own first
choice, but each is willing to give up its own first choice if necessary to avoid
conflict.
23
Although you and I may have different ideas about the optimal
length of the President’s term of office, we agree that a quick and obvious
resolution is better that uncertainty or prolonged conflict, which could be
highly destabilizing. The outcome of such a game can be determined by
social conventions that may make one solution stand out as more natural or
appropriate.
24
The text of the Constitution is a particularly good focal point
of this kind: our culture has given it a salience that makes it the natural
choice when cooperation is valuable. But its salience and general
23
In the traditional statement of the “battle of the sexes” game, A wants to go to the
ballet; B wants to go to a boxing match; but each would prefer to sacrifice his or her
preference in order to be with the other. The game apparently originated in R. Duncan
Luce and Howard Raiffa, Games and Decisions: introduction and critical survey 90-94
(Wiley 1967).
24
See, for example, the argument in David M. Kreps, Game Theory and Economic
Modelling 102, 143-44 (Clarendon 1990).
24
acceptability, rather than its authority or optimality, are the most
important reasons for accepting it.
Another analogy might be between our practice of adhering to our
eighteenth- and nineteenth-century Constitution and the reception of
Roman law in Europe in the late middle ages. Roman law, when it was
rediscovered in Western Europe, was an accessible, comprehensive, and
basically acceptable set of rules. Various peoples’ purported ancestral ties
to Rome undoubtedly helped Roman law gain acceptance—another parallel
to our Constitution—but the actual promulgators of Roman law obviously
had no claim to obedience. It is also not likely that the provisions of Roman
law were the best that could be devised as an original matter. It was simply
that Roman law was a coherent body of law that was at hand and that dealt
in a reasonable way with the issues faced by those societies; and its adoption
avoided the costly process of reinvention.
This is what makes the text of the Constitution binding—the practical
judgment that today following this text, despite its drawbacks, is on balance
a good thing to do. Every time the text is ignored or obviously defied, its
ability to serve as common ground, as a focal point, is weakened. On the
other hand, every time we plausibly demonstrate that a conclusion we’ve
reached can be reconciled with the language of the Constitution, we make it
easier for the Constitution—either the same provision or some other
provision—to serve the conventionalist function of narrowing or
eliminating disagreement. We will have to put up with a malapportioned
Senate and with disqualifying naturalized citizens from the Presidency, but
we will gain by narrowing or eliminating disagreement on many other
issues.
25
This conventionalist justification for treating the text as binding is
based both on the interest of society as a whole and on the requirements of
fairness. It will not always be in the self-interest of every individual to
follow the text. Any one individual might, in theory, be best off if he can
follow his own judgments where they diverge from the text but insist that
others adhere to the text where he agrees with it. But, on the
conventionalist account, everyone will be better off if everyone follows the
text than if people generally insist on their own judgments. In these
circumstances, the argument for following the text rests on a basic
principle of fairness: it is unfair to take advantage of others’ cooperation in
a mutually beneficial scheme if one does not cooperate oneself. The
argument may also be consequentialist: it may be that if one person cheats,
by failing to follow the text, others are more likely to cheat too, and soon the
ability of the text to coordinate behavior will be lost, to everyone’s detriment.
The conventionalist justification for following the text will only make
sense if certain things are true of the text. Of course if the text were entirely
open-ended—if it did not prescribe anything in any case—it could not serve
as common ground in the conventionalist sense. More important, if the text
forced truly unacceptable outcomes on us, the drawbacks of using it as a
focal point might outweigh the gains. It might still be possible for certain
provisions to be focal even if others were disregarded; it is difficult to figure
out, as a matter of social psychology, just what makes something an
effective focal point. But surely we are much more likely to get the
conventionalist benefits of, say, the provision limiting the President’s term
of office, if we can say that the whole Constitution is binding than we are if
26
we routinely disregard parts of the Constitution and try to insist that only
certain clauses are binding.
The conventionalist justification is sometimes challenged on the
ground that it is somehow too cold-blooded. It seems to reduce the
Constitution from being a quasi-sacred document, the product of the
Framers’ genius, to being a desiccated focal point. If this were true, then
the conventionalist justification might be another sectarian account, not
something that can serve as part of an overlapping consensus among
different conceptions of American citizenship—many of which revere the
Constitution, and some of which view it as divinely inspired. But it is by no
means an implication of conventionalism that the Constitution is “merely”
a focal point; on the contrary. It takes a certain kind of genius to construct a
document that uses language specific enough to resolve some potential
controversies entirely and to narrow the range of disagreement on others,
but also uses language general enough not to force on a society outcomes
that are so unacceptable that they discredit the document.
The genius of the Constitution is that it is specific where specificity is
valuable, general where generality is valuable—and that it does not put us
in unacceptable situations that we can’t plausibly interpret our way out of.
There is reason to think the Framers were self-conscious about this, for
example in their elliptical (albeit doomed) treatment of slavery in the
original document. Today, we see the same outlook in many of the widely-
held views about constitutional amendments. It is commonly said, for
example, that the Constitution should not be “cluttered up” with
amendments that are too specific or that respond too narrowly to particular
27
current controversies.
25
But at the same time, we are willing to add highly
specific amendments to the Constitution, such as the Twenty-Fifth
Amendment, providing for Presidential disability, or the Twentieth
Amendment, specifying the dates when the President will be inaugurated
and Congress will convene. Our political culture, perhaps unself-
consciously, seems to have internalized the requirements of
conventionalism: that there is a time for specificity, but there is also a time
for generality that will allow for interpretive flexibility in the future.
This is why originalism is, despite its pretensions, inconsistent with
the true genius of the Constitution. At least this is so if originalism is taken
to require that the specific understandings of those who adopted a provision
continue to govern until the provision is formally amended. The drafters
and ratifiers of the First Amendment may well have thought that
blasphemy could be prohibited; the drafters and ratifiers of the Fourteenth
Amendment thought that school segregation and gender discrimination
were acceptable. Had the amendments said those things, in terms that
could not be escaped by subsequent interpreters, our Constitution would be
worth less today. But the text does not express those specific judgments. As
a result, instead of having to read the First or Fourteenth Amendments out
of the Constitution, we are able to read our own content into
them—following a common law approach—and then use them to enhance
the prestige of the Constitution as a whole. That, in turn, more thoroughly
entrenches the specific, focal provisions of the Constitution. Making the
general provisions specific, as originalists would, undoes this ingenious
project.
25
Eg Seidman guidelines.
28
Conventionalism and interpretation
The conventionalist answer to Jefferson’s argument has particular
implications for how the Constitution is interpreted. Specifically, if the
conventionalist argument is the reason for paying attention to the text of the
Constitution, even though it was written by generations long gone, then the
guiding principle of interpretation is to preserve the ability of the text to
serve as common ground, to serve as a focal point that will narrow
disagreement. The guiding principles are not obedience or “fidelity” to the
Framers, “translating” the Framers’ wishes, or carrying out the deeply-
held views of the previous generations. These all presuppose either an
Austinian justification or a particular, sectarian conception of American
national identity and American citizenship. Or, to be more precise, and
more in keeping with the idea of a overlapping consensus, the way in which
we express our adherence or fidelity to earlier generations is to interpret
the Constitution in a way that will allow it to serve as a focal point.
It may seem that this account of conventionalism assumes that the
uninterpreted “text alone” provides answers to a significant range of
constitutional issues. In fact the opposite is more nearly true. A
conventionalist account not only accepts the need to interpret the text but
gives relatively specific guidance about how to interpret the text. In any
event, of course, the claim is not about the “text alone” at all, if that means
the text read in isolation from any background understandings or
presuppositions. Whatever guidance the text of the Constitution (or any
other text) gives, it gives because of a complicated set of background
understandings shared in the culture (both the legal culture and the
popular culture). The premise of conventionalism is only that the text,
29
combined with a set of generally accepted background assumptions (that
are difficult to specify but need not be specified for current purposes),
occasionally provides answers and more often limits the set of acceptable
answers.
Conventionalism guides the interpretation of the text in a
straightforward way: it suggests that, other things equal, the text should be
interpreted in the way best calculated to provide a focal point of agreement
and to avoid the costs of reopening every question. In a sense there is
nothing “inherent” in the text, what ever that might mean, that tells us that
the President's “Term of four Years” means four years on the Gregorian
calendar. But interpreting it that way is most likely to settle the issue once
and for all without further controversy. The same is true when the text only
narrows the range of disagreement instead of specifying an answer. The
reason we do not engage in fancy forms of interpretation that would permit
us to question the length of the President's term, or the citizenship
qualification, or other “textual” resolutions of issues, is that the leading
function of the text—to provide a ready-made solution that is widely
acceptable—would be subverted by interpretations of the text that struck
most people as contrived.
Usually this will mean that conventionalism calls for giving the words
of the Constitution their ordinary, current meaning. That meaning will be
more salient, and therefore more suitable as a focal point, than the
meaning the Framers understood. This explains the aspect of our practices
that might otherwise seem like verbal fetishism.
30
One dramatic but revealing illustration is the interpretation of the
right to counsel in the Sixth Amendment. The Sixth Amendment gives a
criminal defendant the right “to have the assistance of counsel for his
defence.” There is little doubt that the original understanding of this
provision was that the government may not forbid a defendant from having
the assistance of retained counsel.
26
Today, of course, Gideon v Wainwright
and subsequent decisions have established that in serious criminal
prosecutions the government must provide counsel even for defendants who
cannot afford it. That rule fits comfortably with the language, and the
language has been used to support it. But in fact it is just a
coincidence—almost a matter of homonymy—that the modern right to
counsel is supported by the language of the Sixth Amendment. The drafters
of the Sixth Amendment might have used some other language to express
their intentions, language that would have made it more difficult to find
support for the modern right (for example, that the accused shall have the
right “to retain counsel for his defense”).
At first glance it seems odd to use the language of the Sixth
Amendment to support Gideon when it is only a coincidence that it does so.
But on the conventionalist account, this use of the language begins to make
sense: so long as a court can show that its interpretation of the Constitution
can be reconciled with some plausible ordinary meaning of the text—so
long as it can plausibly say that it honors the text—the text can continue to
serve the conventionalist function of narrowing disagreement. Original
understandings are often hard to ascertain and are therefore unlikely to
26
See William M. Beaney, The Right to Counsel in American Courts 8-33
(Greenwood 1955); Bute v Illinois, 333 US 640, 660-66 (1948).
31
become focal points in any event; a departure from them is therefore not
very costly. But once a judge or other official asserts the power to act in
ways inconsistent with the text, the ability of the text to serve the common
ground function is weakened. That is why it makes sense to adhere to the
text even while disregarding the Framers’ intentions.
Perhaps the most impressive example of this aspect of our practices is
the application of the Bill of Rights to the states through the Fourteenth
Amendment, the so-called incorporation doctrine. The Bill of Rights
originally applied only to the federal government. In a series of decisions,
mostly in the 1960s, the Supreme Court applied to the states essentially all
of the provisions of the Bill of Rights that protect criminal defendants. The
effect was to bring about a large-scale reform of the criminal justice
systems of the states. These decisions were the culmination of a protracted
argument, mostly between Justices Black and Frankfurter (and their
respective followers outside the Court), over the appropriateness of
incorporation.
Three things seem clear about the incorporation issue. First, it went
from being a subject of intense controversy—probably the most
controversial issue in constitutional law between the mid-1940s and mid-
1950s, and one of the most controversial for a decade or more thereafter—to
being a completely settled issue. The incorporation controversy involved the
most divisive matters—criminal justice, federalism, and, implicitly, race.
But by the mid-1980s, even the most severe critics of the Warren Court
accepted incorporation, and some of them aggressively embraced it.
32
Second, incorporation came to be a settled issue even though it was not
widely accepted that incorporation was consistent with the intentions of the
Framers of the Fourteenth Amendment. During the time that
incorporation took hold in the legal culture, the received wisdom was that
the Framers of the Fourteenth Amendment did not intend incorporation.
27
Recent, extraordinary historical scholarship has thoroughly demolished
that received wisdom.
28
But incorporation become uncontroversial long
before the new historical understandings took hold in the legal culture
generally. What the incorporation controversy and its denouement reveal
about our practices is that—so far as the acceptance of incorporation in the
legal culture is concerned—the Framers’ intentions were essentially beside
the point.
Third, and most striking, despite the fact that there are textual
difficulties with incorporation that its proponents never worked out—under
the incorporation doctrine, the Due Process Clause of the Fourteenth
Amendment seems, at first glance, redundant
29
—the widespread
acceptance of incorporation has something to do with its use of the text. It
helped enormously that the Court was reforming state criminal justice
systems on the basis of conceptions that had some link to the text of the Bill
of Rights, rather than on the basis of principles that did not have as explicit
a textual foundation. It seems unlikely that the Court’s reform project
would have succeeded in the way it did if the Court—instead of invoking the
text of the Bill of Rights to aid its campaign—had simply devised a new set
27
Fairman, Bickel
28
Amar, Bill of Rights; Michael Kent Curtis.
29
See Amar for an ingenious argument that it is not redundant. Again, however, the
point is the understandings at the time incorporation became settled.
33
of rules for the states to follow, however sensible those rules might have
been.
Since there was no general belief that the Framers (of either the Bill of
Rights or the Fourteenth Amendment) contemplated that the text would be
viewed in this way, and since the text itself doesn’t immediately lend itself
to that interpretation, why should the textual basis of incorporation matter
so much? If we don’t care about what the Framers thought they were doing,
why do we care so much about the words they wrote? The conventionalist
answer is that by tying reforms of state criminal justice systems to the text
of the Bill of Rights, the incorporation doctrine could operate within the
range of agreement in society. That is, in the face of widespread
disagreement about criminal justice, the Court could take advantage of the
fact that everyone thinks the words of the Constitution should count for
something. People who might have disagreed vigorously about the merits of
various reforms of the criminal justice system could all treat the specific
rights acknowledged in the Bill of Rights as common ground that would
limit the scope of their disagreement. A reform program that had a
plausible connection to the text of the Bill of Rights was therefore more
likely to be accepted than one that did not.
It is in this sense that incorporation is “consistent with the
Constitution” in a way that a nontextual program of criminal law reform
would not be. The point is not that the Framers, or the people, acting in 1789
or 1868, commanded the reforms that the Court undertook. As many other
examples show, those are neither necessary nor sufficient conditions of a
constitutional development. The Court undertook the reforms of the
incorporation era, and the reforms lasted, be cause they made moral and
34
practical sense, and because, by virtue of their connection to the text, society
could reach agreement (or at least narrow the range of disagreement) on a
legal outcome even in the face of deep moral disagreement.
Conventionalism leads to at least one other possibly surprising
interpretive practice: by and large, the text matters most for the least
important questions.
30
This is another way in which the conventionalist
justification for following the words of earlier generations departs from the
Austinian justification. If the text is important because of the authority of
those who adopted it, then it should be more important when the issues are
more important. But here, too, conventionalism not only makes more sense
in the abstract—for Jefferson’s reason—but conforms to settled practices.
The most striking example is the separation of powers. In the last two
decades there has been much litigation about the allocation of power
between the executive and Congress. Much of the resulting law—but not
all—is notoriously formalistic, in the sense that the courts (as well as the
broader legal and even popular cultures) heavily emphasize the text and the
original understandings. This is true, for example, of cases involving
relatively technical questions about the Appointments Clause, and of the
legislative veto decision.
31
But in separation of powers cases where the
stakes are higher—such as in determining the constitutionality of the
independent counsel statute or of non-Article III courts—the law is not
30
Easterbrook, Harv L Rev, lamenting this.
31
See, for example, Freytag v Commissioner of Internal Revenue, 501 US 868 (1991);
Bowsher v Synar, 478 US 714 (1986); INS v Chadha, 462 US 919 (1983); Buckley v Valeo, 424
US 1 (1976). This point has been made by Rebecca L. Brown, Separated Powers and Ordered
Liberty, 139 U Pa L Rev 1513 (1991), and Peter L. Strauss, Formal and Function al
Approaches to Separation- of-Powers Questions—A Foolish Inconsistency?, 72 Cornell L
Rev 488 (1987).
35
particularly formalistic. And, of course, in high-stakes decisions
concerning other subjects, like equality or reproductive freedom, text and
original understandings are left far behind.
This apparent feature of our practices—the less important the issue,
the more important the text—is consistent with a conventionalist approach
to interpretation. When the moral stakes are high, people are less likely to
accept a solution just for the sake of having the matter resolved with
minimal friction. They are willing to live with controversy as the price of
trying to resolve the issue in the way they think is right. But in dealing with
many separation of powers issues it is more important that the issue be
settled than that it be settled just right—so that we know which acts are
valid, which political actor must make which decision, and so on.
Consequently our practices are more formalistic.
Sometimes, though, the costs of unsettlement can be so great that even
important provisions are interpreted formalistically. The provision that
each state have two Senators is an example. It is unthinkable that a court
would declare that provision unconstitutional as a violation of the principle
of one person, one vote—even though such a result would probably be no
more at odds with the original understandings than the Supreme Court’s
actual reapportionment decisions. But here, too, the adherence to the
provision is best understood on conventionalist grounds. The provision is
entirely clear (indeed it is entrenched in the Constitution, purportedly
against constitutional amendments; Article V provides that no state may be
deprived of its equal representation in the Senate without its consent). It is
extremely salient, and the subject it addresses is very sensitive because it
affects what counts as a validly enacted law. A constitutional decision at
36
odds with the clear language would therefore be highly destabilizing. Even
so, in times of the greatest stress, such as Reconstruction, this provision
was arguably disregarded.
Precedent versus text
The conventionalist justification for following the text can also shed
some light on the question of what should be done when an apparently well-
established line of precedent appears to be inconsistent with the ordinary
meaning of the text. Self-styled textualists and originalists, including some
on the Supreme Court, seem to take it for granted that the precedent, which
is not the real Constitution, must give way to the text, which is. But this
claim cannot be justified, at least not without much more argument.
The Fourth Amendment provides an illustration. Current Fourth
Amendment law—which presumptively requires a warrant—is hard to
reconcile with the plain language of the Fourth Amendment, which does
not require a warrant but limits their availability. Here again, the
established gloss seems to have superseded the language; the “warrant
requirement” has been read into the text (in somewhat the same way that
“separation of church and state” has been read into the Establishment
Clause).
It has been powerfully argued that the Fourth Amendment should be
interpreted in a way that seems more consistent with the plain language
and original understandings: searches should be allowed, even without a
warrant, if they are reasonable; the Fourth Amendment’s limit on the
37
availability of warrants is intended to keep government officials from
claiming immunity against civil suits.
32
Good arguments can be made in
support of this view. But the text is among the least important of them. If
this revisionist view of the Fourth Amendment should be adopted, it should
be adopted principally because it is more sensible—for example, if the
warrant requirement serves no useful purpose in restraining the power to
search and operates only as an arbitrary limit on law enforcement.
If that argument in support of the revisionist view of the Fourth
Amendment is correct, the fact that the text supports it is significant for
two purposes. It weakens the argument that departing from the “warrant
requirement” would be destabilizing in conventionalist terms. The presence
of textual support for the revisionist interpretation would help ensure that
the conventionalist function would be unimpaired. Second, the language of
the amendment serves roughly the same role as an old precedent. The
language of the amendment strengthens the case for the revisionist
interpretation of the Fourth Amendment in roughly the same way that a
Marshall Court precedent would: it suggests that some people whose views
we should take seriously supported the revisionist interpretation. The one
thing that should not be accepted, however, is the claim that changing
Fourth Amendment doctrine to make it more consistent with the text is a
matter of jettisoning “mere precedent” in favor of “the Constitution,” at least
if the invocation of the Constitution is meant to have any normative
significance. The priority of the text has to be justified. Sometimes
conventionalism justifies it, but when, as in this instance, the text has been
heavily glossed, another justification is needed.
32
Amar, Taylor.
38
The Constitution and commands
Finally, there is the question whether the Austinian view that
underlies Jefferson’s claim has any remaining significance for
constitutional law. All the provisions of our Constitution that give rise to
litigation are quite old. In recent years there appear to have been no
significant cases decided under any amendment more recent than the
Twenty-First, added in 1933. (There was litigation under the Twenty-Fourth
Amendment, outlawing poll taxes, soon after its adoption, but it seems
unlikely to recur, at least on a large scale.) As a result, constitutional law
today does not really illustrate the intertemporal nature of interpretation.
Everything is more than a generation old, however generations are
counted; the common law and common ground justifications for obedience
therefore predominate.
But things do not have to remain that way. If an amendment were
added to the Constitution, the Austinian justification could reassert itself,
for a time. In virtually every session of Congress, for example, a
constitutional amendment is proposed that would specify, in one way or
another, that “voluntary prayer” is to be permitted in the public schools. It
is generally understood that the purpose of such an amendment is to
overrule a series of Supreme Court decisions beginning with Abington
School District v. Schempp,
33
which held that it was unconstitutional for a
public school to conduct teacher-led devotional Bible reading in the
classroom. Under Schempp and other decisions, the fact that a student
33
374 U.S. 203 (1963).
39
could leave the classroom during the prayer was not enough to make the
practice constitutional.
Suppose such a constitutional amendment were adopted, after a debate
in which it was generally acknowledged that the purpose of the amendment
was to overrule the Supreme Court’s decisions. How should a court, or any
other conscientious official (or citizen) interpret such an amendment? The
answer to this question should change over time.
Immediately after the amendment was adopted, it seems clear that the
correct interpretation of the amendment would be that it permits school
prayer of the kind banned by Schempp. This is true even though the text,
read in isolation, does not compel such a result. It is certainly plausible to
say that school prayer of that kind is not “voluntary.” Indeed that is probably
the best way to understand the basis of the Supreme Court’s decisions
(although it is not quite what the opinions said). But if the public debate on
the amendment proceeded on the assumption, generally shared by all
involved, that the issue was whether the Court’s decision should be
overruled, then it seems quite clear that it would be wrong for the courts or
anyone else to interpret the amendment differently. In those
circumstances, seizing on the term “voluntary” to produce a different result
immediately after the amendment was adopted would be a kind of trickery,
an action taken in bad faith.
If this is so, then one consequence is that originalism is, to a degree,
rehabilitated from various attacks other than Jefferson’s. Obviously there
will be some problems in asserting that “everyone knows” or “everyone
understood” that the purpose of the amendment was to overrule Schempp.
40
Some people, somewhere, might not have understood that. In fact, during
the debate some people would undoubtedly have made the argument that
the amendment, as drafted, did not accomplish the effect the drafters
sought, because it referred only to “voluntary” prayer. But it would still be
possible for people living at the time to say, with confidence, that the
provision was generally understood to overrule Schempp. To that extent,
some of the common criticisms of originalism—that it is impossible in
principle to identify an original understanding—seem mistaken.
Over time, though, the interpretation of a voluntary prayer
amendment could appropriately change. For Jefferson’s reason, it would be
acceptable for an interpreter to say, a few decades down the road, that
although teacher-led school prayer was considered “voluntary” when the
amendment was adopted, we have now come to understand, in the light of
experience, that such prayer is never really voluntary; and that therefore
the amendment should be understood only to allow prayer that is not
officially sponsored. This would be inconsistent with the original
understanding of the amendment, but consistent with its language. Such
an explicit reversal and rejection of the acknowledged original intent might
seem jarring. But this is, in substance, no different from the most generally
accepted justification for Brown v. Board of Education.
34
At one time it was
thought that school segregation was consistent with equality; now we
understand otherwise. Similarly, in Minor v. Happersett,
35
the Supreme
Court, citing textual and historical evidence, held that the Fourteenth
Amendment did not enfranchise women because it neither forbade gender
34
See, e.g., the discussion of Brown in the plurality opinion in Casey (and in Souter’s
confirmation hearing testimony).
35
88 U.S. 162 (1874).
41
discrimination nor applied to voting; although the specific holding in Minor
had to be reversed by constitutional amendment, both aspects of its
reasoning have now been emphatically rejected, without any serious
reconsideration of the historical record. The hypothetical school prayer
amendment would be different to the extent that it reversed an earlier
Supreme Court decision, and this would be an additional reason for caution
in moving away from the original understanding of the amendment. But
otherwise the cases are parallel.
The justification for such a break with original understandings would
have to be, as usual, a common law one. One would have to show that, even
giving due deference to the judgment of those who adopted the provision,
the conclusion they reached should now be overturned. That showing
would be easier to make if there were a progression of cases in which the
criterion of “voluntariness,” understood to permit school prayer, became
more and more difficult to apply and was gradually eroded. The one thing
that could not be done would be to say that the language did not matter;
under the hypothetical amendment, if school prayer were to be banned, it
would have to be on the basis of an argument that claimed to be anchored in
the text.
One problem, of course, would be to identify the point at which a court
would be justified in abandoning the original intentions—the point
comparable to Jefferson’s 19 years. Obviously this cannot be done with
precision. The problem of defining this point is less severe than it might
seem—less severe than it was for Jefferson, who had to choose an
expiration date—because the text continues to be honored, and even the
original understanding has the force of a precedent. And as with many
42
things in a common law system, the judgment will depend on factors that
cannot be reduced to a rule: not just the passage of time but the extent to
which circumstances have changed or new facts have emerged, the
difficulty in administering the old rule in contested cases, and so on. The
one thing that seems clear is that the interpretation of legal provisions
cannot remain static, not without confronting Jefferson’s problem.
