The most important recent development in originalism has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law. This recognition has led to at least four different ways in which originalism has been thickened.
First, whole clauses in the Constitution are not comprehensible without understanding a complex body of preexisting domestic law, including rules of interpretation, of which most modern readers would be oblivious. A fine example of the importance of this approach is the article Preemption by Caleb Nelson. Here Nelson shows that the phrase “anything in the law notwithstanding” which appears at the end of the Supremacy Clause in Article VI, is not just verbal filler but a familiar kind of legal signal called “non-obstante” clause. It was added to the Constitution to block a rule of interpretation that required courts to harmonize prior statutes with subsequent statutes even if on their face there was an appearance in conflict. This discovery has real bite: it indicates that there is no general presumption against preemption.
Second, it is not only domestic rules that form the background for fixing constitutional meaning. In The Law of Nations as Constitutional Law, Anthony Bellia and Brad Clark suggest that provisions, like the President’s power to send and receive ambassadors, and the Congress’s authority to declare war, can be understood only by reference to background principles of the law of nations. This article too has much contemporary relevance since it justifies application of the settled principles of the law of nations to override state law to protect such Article I and Article II powers of the federal government.
Two other examples of thickening originalism may even have more far reaching consequences because they are not focused on specific clauses, but are of general application.
Previously I praised America’s Unwritten Constitution by Akhil Amar and then offered my first reservation about the book. My second reservation is its treatment of economic liberty. Professor Amar sees the greatness of the Constitution in the unfolding of democracy and equality. But economic liberty is also in the Constitution’s DNA and yet he seems to leave it out of the American story.
I also thought unfounded one historical claim, which itself surprising, because Professor Amar is generally very reliable. In a discussion that attacked theories of interpretation that would justify reasoning striking down economic regulation, as in Lochner v. New York, he wrote: “The 1913 ratification of Federal Income Tax Amendment, one of the most notable populist events of the twentieth century, blessed redistributive economic policy by endorsing a tax that everyone understood would likely feature a progressive structure taxing the wealthy at steeper rates than the poor.” One does not have be a libertarian to wonder whether the proposition that this amendment blessed redistributive economic policy in general is an overstatement. In fact, the 16th amendment can be seen as attempt to find an stable source of revenue other than tariffs, which were not only inefficient but often regressive, rather than a general endorsement of redistribution.
In any event, regulatory powers and taxing powers are different constitutional concepts. Economists then and now almost universally see redistribution through taxation as a superior policy, because it does not lead to as much distortion and loss of innovation as does redistribution through regulation. Thus, the 16th amendment cannot be said to extinguish whatever constitutional restrictions there are on redistribution through regulation.
More generally, our Constitution protects economic freedom in many ways.
Despite my admiration and enjoyment of America’s Unwritten Constitution, I have some disagreements as well. Professor Amar is absolutely correct to reject a wooden textualism, but one of his interpretive moves strikes at the formality that comes from interpreting the language of the Constitution as fixed when it was enacted. In particular, I worry about the “lived Constitution.” Here Professor Amar discovers a mode of constitutional interpretation which discovers unenumerated rights in the practices and beliefs Americans live by. An example would be the emergence of a right to contraception.
To be sure, the Constitution’s structure permits a lot of room for the development for social norms. Federalism for instance permits a forum of experimentation. New social norms change law through the process of passing ordinary legislation. No state bans contraception now and none now would do so, regardless of whether the Court had declared it a constitutional right.
But I fail to see why norms should become part of the Constitution even if they enjoy substantial support. First, that support does not necessarily represent a consensus about making the norm a constitutional right. It is simply different to accept a norm as a good thing now as opposed to entrenching it for the future in the federal constitution. We may need time for second thoughts or believe that the costs of entrenchment outweigh the benefits given future uncertainty.
I recently finished Akhil Amar’s America’s Unwritten Constitution and strongly recommend it to anyone interested in constitutional law. That is not because I agree with all of it. As I get older, I find the most important aspect of a great book is its capacity to enlarge the ideas I can entertain as interesting and plausible rather than to compel my agreement.
America’s Unwritten Constitution sets forth a variety of ways that an interpreter of the Constitution can look beyond the text’s words to interpret and implement it today. Some are ways that are always compatible with originalism. As Mike Rappaport and I do in our own book, Amar shows that context and the methods of interpretation at the time of its enactment are indispensable to understanding the Constitution. Others are also compatible with originalism if properly done, as when Amar looks to the early practices of the republic to clarify meaning or takes account of precedent. Other methods, as I will argue in a follow up post, are less compatible with originalism, but they also describe as matter of fact how the Court has given effect to constitutional law.
The book shows a lifetime of constitutional study on every page. Its tone is a model of what scholarship should be. If Yeats is right that prose is arguing with others and poetry is arguing with oneself much of this is poetry. Different sides of argument are given their due before Amar comes to judgment. And it is wonderfully written.
Over at the Volokh Conspiracy, Akhil Amar has a long post on freedom of speech. Akhil takes issue with the post by Richard Posner that had criticized Scalia and Garner for not following the narrow Blackstonian understanding of freedom of the press as the original meaning. Readers will remember that I had criticized Posner on the same grounds. As I did, Akhil relies in part on Eugene Volokh’s scholarship on the original meaning of the First Amendment. Akhil raises a separate issue, which he and others have discussed before: While it is possible that freedom of the press was intended to…