Wednesday, March 26, 2008

When Does Originalism Start?

The 15th Amendment officially enfranchised Black Americans. Hence, I presume that Blacks did not get the chance to vote for the ratification of it, or the other Reconstruction Amendments (obviously, they didn't participate in the drafting). It was only going forward that Blacks actually were officially included in the constitutional process. And, if practically speaking Blacks were only let in on truly equal terms after 1965, then only the 25th, 26th, and 27th amendments can truly be said to have been drafted and ratified with the true assent of the American population writ large.

What prompts this observation? John McGinnis and Michael Rappaport have a new paper on SSRN entitled The Desirable Constitution and the Case for Originalism. Essentially, the thesis is that originalism is a superior form of constitutional adjudication "because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories." The reason is that constitutional texts are approved by super-majorities, which helps protect minority interests and creates the type of consensus necessary for entrenched laws. Since the only time constitutional meaning is affirmed through super-majoritarian means is during the ratification process, that is the best lens for ascertaining the optimal constitutional meaning. Originalism is thus justified because and only because it represents the contours of a broad, super-majoritarian consensus.

I skimmed the article, but the part I was really interested in was where McGinnis and Rappaport deal with that ever-present anti-originalist objection: that Blacks were simply not included in this decision making process for much of America's history (the discussion is on pages 39-43). This raises a larger question of when originalism starts. If originalism is justified by the existence of broad consensus among constitutional ratifiers, originalism only makes sense as a interpretative project where such consensus was present. If a given group is excluded, it's impossible to claim broad consensus, and the whole project is suspect, at least until the exclusion is rectified. And even then, the project only works going forward. It can't claim retroactive legitimacy from the people hitherto excluded.

M&R concede that Black exclusion represented a severe constitutional failing. But, they argue, this failing was mostly corrected via the passage of the Reconstruction amendments, which, facially at least, eliminated the problem. M&R also concede that, for at least a century afterwards, Blacks remained excluded in spite of the existence of these protections. But they say that this was due to a failure of originalism -- had the amendments been construed as they were originally meant, then Blacks would have been able to participate.

The problem is that this response doesn't work within M&R's own paradigm. For starters, it is unclear why creating nominal Black inclusion in the 19th century accords retroactive legitimacy to amendments passed during the period of Black exclusion in the 18th. Perhaps, amendments 16-28 are now in the clear (though not entirely, as I'll get into below), but amendment 1-12 certainly still retain the taint of original sin, if you will. Amendments passed in the future do not and cannot alter the conditions under which laws were enacted in the past. Hence, M&R can't really grant super-majoritarian legitimacy to original meanings cast prior to the period of Black inclusion.

Second, M&R's argument is premised on the existence of actual, not theoretical, inclusion and participation. Even if a group, such as Blacks, is officially free to participate in the political marketplace, so long as there are practical bars, the over-arching consensus M&R strive for remains absent. Hence, the effective absence of Black political participation in the century after the reconstruction amendments also casts doubt on the existence of consensus, and by extension, the legitimacy of post-Reconstruction amendments. M&R do say that they view this absence as a failure of non-originalism, not originalism, but that's besides the point. Regardless of why participation wasn't present, so long as it was absent we cannot assume broad social consensus. This, as my opening paragraph indicates, pushes the "start" of originalism out past 1965, with only the 25th amendment on up qualifying.

But the final problem M&R run into is that I believe, under their framework, the Reconstruction amendments are tainted too by the specter of exclusion. Remember, M&R give legitimacy to constitutional texts not because of abstract moral theorizing that tells us that clauses like "equal protection" or "free speech" are cool. They gain legitimacy because they're drafted under conditions of broad participation and consensus. But Blacks still couldn't participate in the drafting of the Reconstruction amendments, and hence those amendments also don't actually represent super-majoritarian consensus either.

This is easy to look past, because it seems apparent that had Blacks been included, they obviously would have voted in favor of these amendments. But this isn't quite true -- as M&R concede, it's entirely possible that they would have demanded additional clauses and protections, for example, ascertaining social rights (they also say they might have tried to protect affirmative action. I think that the case for permitting voluntary affirmative action is far stronger under putatively originalist frameworks than the argument against it -- in fact, I've seen no evidence whatsoever making the case against it beyond mere assertion. It is claims such as this which make me skeptical of originalism's supposed "neutrality" writ large). More importantly and fundamentally, we have no idea what the drafting, debate, text, or ratification would look like under those conditions. Trying to salvage the event through historical counter-factuals is vain endeavor -- but that runs true in both directions. It's equally speculative to assume that the constitution would look roughly the same, as it would be guess at what or how much might have changed. Hence, what would be truly accurate to argue is that originalism is irredeemably corrupted when texts are drafted outside of situations consisting of full and equal participation, and we have to look to other justifications for our preferred interpretative schema in such cases.

At this point, M&R fall-back considerably from their original position. They claim that, even granting the existence of continued defects in the constitution, the costs of fixing them by judicial fiat (or junking the constitution entirely) are outweighed by the costs, particularly that of legal instability and constitutional dissension. This is less of a response than a capitulation -- it admits that their metric may end up reifying political decisions cast under Black exclusion, but claims there is no away around that without trashing the rest of their model. At which point, I don't think they can be surprised if Black legal theorists and their allies advocate doing just that. Stability, after all, is not a boon when we're stabilizing an injustice. Uncertainty about whether you have equal rights is still better than certainty you don't have them. And none of these issues are ones that directly relate to M&R's thematic argument for why originalism is justified: the existence of a super-majoritarian consensus, because we're already beyond the point at which such consensus could be reached. Once this structural argument for legitimacy is abandoned, and we move to more contested issues of weighing (such as the need for legal stability), then the apparatus becomes vulnerable to attack from other competing values, and it loses whatever claim it had to immunity from non-originalist critique.

So, to conclude: the exclusion of Blacks from the political community means that the original consensus surrounding constitutional amendments passed in this period is nullified. Consensus can't be extended retroactively, so the passage of the Reconstruction amendments doesn't impact the original infirmity of the bill of rights and original constitution. And consensus requires actual, not theoretical, ability to participate, so neither can we claim that amendments passed in periods of de facto Black exclusion have true originalist legitimacy. Consequently, M&R's contemporary originalism can only start with those amendments passed under conditions of full and equal participation, which gives us an originalism of amendments 25-27, but nothing else. If originalism is to survive in the future, it has to kill off its desire to rescue the past. There is no way to salvage original meanings of constitutional clauses drafted under conditions of mass exclusion. Originalism can only work in situations where the entire community is participating. Where this did not occur, we must find other paths to constitutional interpretation.


PG said...

There's also the illegitimacy for, oh, half the population (including half the Black population) of the Constitution and amendments 1-18. Amar has argued that legislation preceding 1919 that peculiarly affects women (e.g. abortion restrictions, sex-discriminatory laws) is therefore unconstitutional, I think on due process grounds.

David Schraub said...

Yeah, that was their next section, but I feel like the argument plays out the same way.

Also, I really just don't care about female disenfranchisement. I'm really quite misogynistic.

Jack said...

Plus those of us who don't own land weren't part of the consensus of the original document or the first twelve amendments.

This is always what happens when someone takes the concept of consensus/contract in value theory and tries to apply it to actual historical events. They might as well claim that the constitution was formed to escape the state of nature.

The more interesting though obviously less relevant question is would this argument justify originalism if we decided to rewrite the constitution tomorrow. I don't think it could for more than a generation without falling back on what you call their "original position". Intergenerational compacts are impossible so any new religions, social groups, political groups... any new group (majority of minority) will not have participated. Presumably, there was someone who today would identify as transgendered, who voted to ratify some part of the constitution. But one can't say that transgendered people participated in the constitutional process- not without a spit take.

PG said...

"any new religions, social groups, political groups... any new group (majority of minority) will not have participated"

Unless people who belong to any of these groups are or were specifically excluded from voting, I don't see how that follows. A religion may arise tomorrow that demands murderers be punished by both cruel and unusual means, but so long as people who believe that never have been and never will be prevented from voting, they are included in the compact.

The survival of the legislation Amar notes -- statutes that peculiarly affect women -- demonstrates that the argument doesn't necessarily play out exactly the same way. A Constitution that does not protect the body from state interference doesn't inherently have a greater impact on one race than another, but it can have a greater impact on one sex than another. No serious politician even suggests laws that by their nature would burden only African Americans, whereas people get elected all the time saying we should ban abortion. Moreover, the Supreme Court has taken a more protective stance with regard to race -- affording it strict scrutiny, worrying about "discrete and insular minorities."

David Schraub said...

Fair point.

Jack said...

The fact that new groups were never explicitly excluded might mean that the original constitution isn't as tarnished in our eyes (it's not the same as realizing the founding fathers were gun-toting white supremacists) but that doesn't mean the original intent of a constitution written without recognized LGBTQ groups around can be said to legitimately apply to such groups.

That doesn't mean I support a radical civic republican approach but I don't understand why claims of illegitimacy require anyone to prove exclusion.

PG said...

Because I don't think you need to be an organized, recognized group to have your protections incorporated in the Constitution. There weren't any Nazis in 1789 either, yet their free speech rights are protected by the First Amendment. Government regulation of sexuality disproportionately impacts LGBTQ folks, but except for the lesbians, they were in fact able to vote. There may not have been enough of them to affect the Constitution beyond the nebulous 9th Amendment, but they were there. I am saying that women are distinct in this way because government regulation of the body is going to have such a massively different impact on them for the simple difference in biology. The fact that men don't get pregnant means there is an entire sphere of potential government action that will not invade their bodies, but will invade women's. (As O'Connor supposedly said once, this is just as true of a government like Communist China's that forces abortions as one of Communist Romania's that criminalized them.) In contrast, straight people do engage in sodomy, so a simple criminal prohibition on a particular action will affect them.

Jack said...

I can agree that the exclusion of women has particularly damaging implications for the theory. I just think the theory would still fail even if we had had universal suffrage in 1787.

David summarizes McGinnis and Rappaport's rationale for originalism as "constitutional texts are approved by super-majorities, which helps protect minority interests and creates the type of consensus necessary for entrenched laws". Well ok, universal suffrage helps make sure the initial system protects minorities and is seen as legitimate. But that system will in no way guarantee the protection of future minority lifestyles, identifications and needs.

Sure, probably many men who were attracted to other men got to vote. But consider era's social norms- no recognition of LGBTQ lifestyles as legitimate, nothing like a significant LGBTQ community, not a word about sodomy or gay marriage anywhere in any of the the era's discourse. I'm not certain we can even posit that homosexual men had a part in the process since they couldn't have campaigned for recognition. Just because they could vote doesn't mean they had access to the process. In other words, they got to participate as men but not as homosexual men.

Abortion is a particularly distinct sphere since only part of the population can get pregnant. But it isn't the only sphere where minority rights can be violated. Pointing out that straight people engage in sodomy also is a bit like pointing out that white people couldn't go to black schools either (and really, you know that, I've read your other comments, you're brilliant). Even if a sphere of government action affects more than one group of people that doesn't mean it's acceptable for only one of those groups to have a say in what that action is. Indeed, we call that tyranny.

PG said...

Thanks for the compliment, but flattery gets you nowhere when I've got a disputatious mood on ;-)

Pointing out that straight people engage in sodomy also is a bit like pointing out that white people couldn't go to black schools either

I agree that there's over-enforcement of sodomy laws against same-sex sodomists, but as Kennedy's majority opinion in Lawrence points out, there's a pretty longstanding legal tradition of prohibiting non-procreative activity of all kinds, including opposite-sex sodomy. The Georgia law challenged in Bowers applied to all sodomy, and Kennedy specifically laid out an intermediate right of sexual privacy, instead of going the O'Connor route of striking down the Texas law for being discriminatory in applying only to same-sex sodomy, in order to strike down laws like Georgia's as well.

It's not really very much like saying that white people couldn't go to black schools, because white people didn't want to go to black schools, because black schools sucked. There are plenty of African Americans such as Prof. Derrick Bell, who are in what David might call the Black Conservative school of thought, who were far more troubled by the in-fact unequal aspect of segregation than they were by the separate aspect, and who have pointed out that Brown's emphasis on de jure desegregation, coupled with Rodriguez's refusal to consider de facto inequality, has left minority children trapped in crappy schools anyway.

Getting back to the main point, I'm not really sure how many "future minority lifestyles, identifications and needs" we ought to worry about if they were completely unrepresented in the human beings who existed in 1789 and at subsequent points of constitutional creation. For example, if it is important to someone not to have to be identified in a binary sex system, the desire not to be trapped by a label of sex existed in those who lobbied toward the 19th Amendment.

I don't think the most important human needs are attached to a specific time period: freedom of conscience, equal treatment regardless of inborn conditions, etc. are universal. Perhaps I'm drifting toward what sounds like a "natural law" argument, but I think of it more as a commonality of humanity -- not that some deity has given us rights that men cannot deny, but that we have a mutual interest in fully-realized humanity. At the point that all adult humans can vote, their rights in this super-majority theory are protected. I am more anxious about our inclination to disenfranchise certain groups, such as felons, as likely to create illegitimacy than I am that because no one today identifies as a Ploogy Joyer, our constitution will be illegitimate with regard to such persons once that identification does exist.

David Schraub said...

Do you watch West Wing, PG? Then perhaps you can play Matt Santos to my Josh Lyman for a moment: "You're too good at this; you can't just walk away." (I'm sure those profs you say have been pushing you towards an academic track think much the same).

Tragically, I don't know what the equivalent of "President of the blogosphere" is.

Jack said...


Sodomy laws: My point isn't that they were used mostly to target same-sex sodomy over opposite-sex sodomy. The law could well apply to both and be enforced fairly...but they would still be oppressive to the homosexual minority for whom sodomy isn't just a fun little game to add to their sex lives. Rather, sodomy is by definition what same-sex sex IS.
To paraphrase Anatole France: 'The law, in its majestic equality, forbids gay and straight alike to engage and sodomy and marry those of the same sex."

This point isn't exactly tangential. Laurence is exactly the sort of case where McGinnis and Rappaport's originalism would have ruled against minority rights even though the case has nothing to do with formally disenfranchised groups. Bringing up privacy as a way to cover gay and straight sodomy doesn't really help you since thats not how an originalist jurist would rule.

I don't really disagree that certain rights have, to this point, been historically consistent. I'd rather we not decide these are the "most important" rights- I think gender identification and the freedom to love who you choose are pretty central aspects of human existence.

You're right to be more anxious about the disenfranchisement of certain groups than the rights of the Ploogy Joyer and others who don't yet exist. But we have every reason to be worried about the rights of those groups of people who are around today but weren't 200+ years ago as recognized minorities with legitimate needs and differences. Obviously I'm thinking here of LGBTQA citizens though there might be others.

I may now change my facebook religion to Ploogy Joyer.

PG said...

David, I think one has to be much more of a self-starter in academia than in law firm practice. As an associate, I have someone to tell me what to do and when it has to be done. If I were an academic, I'd teach, grade papers but never actually complete anything for publication unless blogging counted for tenure.

Technically, sodomy (if we go by the common meaning of oral and anal sex) isn't the only possibility for sexual contact between persons of the same sex. E.g., a woman who is sexually attracted to other women but has a physical preference for penetration may engage entirely in strap-on sex. A male couple in which one person is HIV+ and the other isn't may do something similar if they are hyper-cautious about transmission and mistrustful of condoms. Identification as LGB says who you want to sleep with (respectively: woman with women, man with men, either with everybody), not what you want to do with them.

However, I should say that I have a minority view on LGBTQ issues -- I see them as primarily ones of sex discrimination because I think sexual attraction and gender identity runs on a spectrum. The fact that someone is generally more attracted to women than to men does him no good in a court if he is arrested in a one-night stand with a guy, or if the person with whom he wants to make a lifelong commitment is a guy.

I am reluctant to see sexual attraction to someone of the same sex, or a desire to be identified as a sex different from that on one's birth certificate, or a refusal to buy into gender binaries as making someone into such a different kind of person from me that the existing Constitution doesn't protect their most fundamental rights. Gender identification matters only in the backwardness of a society that demands that one's genitals/ chromosomes determine one's appearance, abilities and interests. In a post-gender society in which genders are at most cultures one can prefer but be free to ignore entirely, gender identification won't matter any more than one's identification as a hipster, punk, etc. -- relevant to the individual, but to which the law is indifferent and unknowing.

And "the freedom to love who you choose" is the kind of rhetoric that I'm doubtful about because it tends to get used against same-sex marriage by people arguing slippery slopes toward polygamy, adult incest, bestiality and the other Scalian parade of horribles.

Jack said...

Fair enough about sodomy. But we can agree that generally speaking such laws cause disproportionate harm to those interested in the same sex? (And you don't really have to describe the act in detail but I'm confused as to why the same-sex male couple that "does something similar" isn't bumping into sodomy laws.

Gender identification matters only in the backwardness of a society that demands that one's genitals/ chromosomes determine one's appearance, abilities and interests. In a post-gender society in which genders are at most cultures one can prefer but be free to ignore entirely, gender identification won't matter any more than one's identification as a hipster, punk, etc. -- relevant to the individual, but to which the law is indifferent and unknowing.

Cool. But my argument is that in that post-gender society we ought to ignore the intent of our backwards founders without waiting around for a supermajority to amend the constitution.

And yeah, the wording is pretty hokie (plus it should probably be whom, not who). Since we're in friendly company I'll admit to not necessarily thinking the law should prohibit polygamy or adult incest. The former is problematic is in highly patriarchal cultures but in principle I haven't heard good reasons to prohibit them.

PG said...

I'm away from blog commenting for a while after today, so this will have to be my last comment in this discussion.

But we can agree that generally speaking such laws cause disproportionate harm to those interested in the same sex? (And you don't really have to describe the act in detail but I'm confused as to why the same-sex male couple that "does something similar" isn't bumping into sodomy laws.)

I honestly couldn't say whether it is the laws themselves that are disproportionately harmful to same-sex couples, or just the biased enforcement of them. Orgasm + physical closeness to another person = some kind of sex life. Prohibitions on "buggery" (anal sex) at least have a genuine health issue -- the massively greater likelihood of skin tearing and disease transmission -- to animate them once the "ew, icky" justification is extinguished.

Sodomy laws usually define sodomy as contact between the genitals of one person and the mouth or anus of another. The hyper-cautious couple with one HIV+ partner may choose to do what the lesbian couple does and penetrate without a penis. There also are other sexual aids such as the fleshlight that simulate other body parts. I'm inclined to think that these are missing something, but I have been roundly scolded by lesbian friends for such heterocentric assumptions.

I start from the position that it doesn't take a compelling state interest to prohibit something so long as the prohibition is compatible with constitutional rights. Our Constitution and other laws are almost never supposed to distinguish on the basis of sex, so any laws that restrict marriage, sex acts etc. by reference to a party's sex are in my opinion highly suspect. In contrast, the Constitution and laws do distinguish between 1 person and three people (e.g. in "one man, one vote") and between related and unrelated parties (especially in inheritance and tax laws).

Polygamy requires a massive restructuring of family law, which same-sex marriage doesn't. Family law is not gendered, so having two men in a marriage will make no difference legally from having a man and a woman. In contrast, the law of family and inheritance is *very* role-dependent. Consider how to deal with who has decision-making power for an incapacitated woman with two husbands. Suppose she is in a Schiavo level of disability, and one husband wants to pull the plug and the other doesn't. We had enough fuss and ridiculousness when the law was clear that a spouse is the first decider -- how much more difficult will the administration of law be if we have two people of equal relational stature? Or if they can agree that their shared wife should die, how do we deal with the elective share should they discover that her will gave all her estate to PETA? (NY law has an "elective share" such that you cannot keep your spouse from inheriting something, with such share being roughly 1/3 of the estate. Do the husbands have to split the 1/3, or does it become 2/3 to give each of them what was deemed a spousal share?)

Certainly we can work around these problems, with a combination of new default rules and a particularly strong pressure on those who opt for multiple partners to make written agreements, but polygamy undeniably is incompatible with the current law.

In contrast, opposition to same-sex marriage is rather silly because SSM isn't a shift in the structures governing the law. It is a *social* shift because our society is so gendered, but our law thankfully is not.