Saturday, May 9, 2020
Josh Hammer has written a characteristically thoughtful and engaging response to Common-Good Constitutionalism, arguing for an approach he calls “Common-Good Originalism.” I see Hammer’s approach as a laudable development, a movement half-way to the right approach. But as with many half-way positions, it is unstable. The structure built of originalism and the common good fits together poorly, for the former is a positivist approach and the latter a nonpositivist one. Thus nothing at all guarantees that the original understanding will necessarily or even predictably track the common good (however the latter is defined), and conversely it is always possible, indeed likely, that the common good (however defined) will prescribe an interpretation that cannot be justified in originalist terms. Towards the end of the discussion, I will examine some other ways of attempting to combine the two approaches, none of which is particularly convincing.
To be sure, even if originalism and the common good cannot be combined in a stable manner, a house with shaky foundations may happen to be shored up by external buttressing. I wouldn’t be wholly shocked to see a position like Hammer’s become a new political equilibrium, one that supersedes the currently reigning libertarian originalism, and theoretical coherence be damned. But that contingent political dimension is not my concern here. My point is one of theory: common-good originalism, whatever its political appeal, has an inherent tendency to break down into one or another of two distinct views, one which subordinates the common good to originalism, and the other which subordinates originalism to the common good.
Hammer’s main substantive argument is an appeal to the importance of oath-keeping, and to the associated clauses of the Constitution. But the argument from oath-keeping begs the question; it is necessarily parasitic on some independent account of constitutional interpretation, an account whose validity is itself the contested issue. The current debate isn’t over the question whether to respect the oath of constitutional fidelity, rightly understood; all concerned agree on that aim. Rather the whole debate is over what the Constitution is best taken to say, and how to decide what it says. What is at issue are rival conceptions of what counts as fidelity, rival interpretive approaches that all claim to embody fidelity. If the oath argument were valid at all, it would be valid for all sides, and each could accuse the others of violating fidelity by taking the wrong approach to interpretation. Their disagreement does not of course mean that there is no right answer to the question they are debating, but it does mean that an appeal to oath-keeping contributes nothing to finding that answer.
Hammer writes that “[t]o solemnly vow to support the Constitution, so help you God, is to make an unbreakable commitment to faithfully interpret and dutifully execute the Constitution’s commands. Unless we accept the Marxist-inspired ‘critical legal studies’ thesis that all text is hopelessly indeterminate, furthermore, we must accept that words maintain generally durable meanings over time.” The first sentence merely poses, rather than answers, the question of how to determine what the constitutional commands are. As for the second sentence, the core problem under debate isn’t whether “words maintain generally durable meanings over time,” but the antecedent question of how to determine those (durable) meanings in the first place. As Ronald Dworkin pointed out any number of times, most devastatingly in a review of Judge Bork’s jurisprudence, the level of generality at which to interpret “the meaning of the words” is the main problem in and for originalist interpretation, even if we attend solely to the meaning of the words as of the time of enactment. When self-described “living originalists” argue that the founding generation enacted texts whose original meaning embodies very general principles of political morality (“ordered liberty,” “antisubordination,” or what have you), from which these originalists proceed to deduce all sorts of rights that would make the founding generation stare in horror, and that Hammer would quite likely find objectionable, they aren’t somehow arguing against the durability of meaning, nor are they stepping outside the boundaries of the originalist method — as evidenced by their participation in the community of professional originalists.
Beyond the circular argument from oath-breaking, it isn’t clear what the case for common-good originalism is; the rest of the piece is mainly taxonomic and genealogical. Hammer says that common-good originalism is a species in the genus “Anglo-American conservatism,” which he associates with Burke, Hamilton, Story and other figures. There are any number of problems with this. I’m skeptical, for example, that Hamilton counts as any sort of “originalist,” unless we distend the word so widely that it has almost no outside. An entirely separate problem (presented here as a delightful troll with a grimly serious point) is that the Anglo-American conservative legal tradition is full to bursting with principles and practices one very much doubts that Hammer wants to defend.
But in any event nothing in this exercise in taxonomy and genealogy speaks to the critical question: how exactly does the originalism part of Hammer’s account relate to the common good part of the account? What happens if and when the original understanding and the common good diverge? (After all, the Constitution of 1789, even viewed in the best possible light, was shot through with grievous moral compromises, as were the later amendments in their own ways). Is the idea that somehow originalism is necessarily ordered to the common good, or conversely that the common good necessarily entails originalism? Or is the relationship contingent, such that originalism usually or sufficiently often yields the common good, or that the common good implies an originalist approach to interpretation, given specified empirical conditions? What exactly are those conditions, and what is the evidence for such claims, given various specifications of originalism and of the common good?
This is not a problem of “hard cases” or unusual boundary situations; it’s a problem about the intrinsic incompatibility between the two parts of Hammer’s enterprise. Roughly speaking, and bracketing whole forests of theoretical epicycles and curlicues, originalism is a positivist enterprise, one that (at least in a pure form) takes the meaning of the law to be solely determined by historical facts about what designated actors said and did, regardless of whether the resulting outputs happen to track or not to track the common good, however defined. By contrast, reading the Constitution to promote the common good is an interpretivist rather than a positivist enterprise. It reads our law and legal practices and institutional history in light of background principles of political morality, which are themselves understood to be legal principles.
For common-good constitutionalism (although not of course for Dworkin), the relevant background principles are those of the classical legal tradition, heavily influential in America until a surprisingly recent point in our history. Of course the classical legal tradition recognizes the legitimate authority of rulers to promulgate ius civile, positive law, as a determination or specification of background principles of natural law and the general law of nations (ius gentium) where those principles admit of multiple reasonable specifications. In this sense part of the law is a positive ordinance of the ruler, and indeed the classical legal tradition says that the text of the law and the intentions of the lawmaker are central considerations in the interpretation of positive enactments. (Respect for enacted texts is hardly unique to originalism). But on the classical approach, it is defined into the nature of law that law is not merely whatever ordinance the incumbent authority happens to create, but is rather an ordinance of reason, promulgated to promote the common good; and it is defined into the nature of the ius civile that it derives from higher law that it determines and specifies. Thus the ius civile is always interpreted in light of background principles of higher law. In the extreme limit the classical tradition holds that an unjust law is no law at all.
Nothing in originalism even purports to guarantee this concordance between civil positive law and background legal principles that embody commitments of political morality. (Hence originalism struggles to justify the decisions made at Nuremberg on the basis of higher law, as a critic of Justice Scalia’s positivism observed in a famous encounter). For theories such as Hammer’s, then, there is always a looming possibility that the original understanding will happen to diverge from the dictates of the common good. What then? Which prevails? In the end one has to choose, or at least one faces a standing threat of having to choose.
This is not the place for a comprehensive review of possible responses to this problem. Suffice it to say that some theories attempt to cope with it by grounding the common good in originalism, and others by grounding originalism in the common good. In the first category are theories that claim that in the United States the content of the original understanding just turns out to strongly track the natural law, so that originalism itself incorporates the natural law. Even if this is true — and I don’t for a minute think it is always or even usually true, under a Constitution as morally compromised as our own — it still leaves the natural law entirely dependent upon the grace and favor of the original understanding; it is all still just (a variant of) positivism. If the original understanding had been different, then on this view “the law” would have been different regardless of the claims of the natural law. As I said in Common-Good Constitutionalism, “th[is] approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing.”
A corollary is that this view yields only an ersatz form of respect for the natural law. On this view, one obeys the natural law only insofar as it happens to be picked up by an originalist command, not because it has binding force as natural law in its own right. But it is intrinsic to the natural law that it should be followed for its own binding force, not merely because some incumbent ruler commanded that it be followed. The natural law isn’t truly followed at all if it isn’t followed as natural law.
The converse view, which is more subtle and plausible, attempts to ground originalism in the common good. It argues, in second-order fashion, that the common good requires that society coordinate on a settled, stable and adequately just constitutional framework for common life, and that originalism provides the durability of legal meanings that allows such a framework to operate over time. Many things that might be said about this argument; I will merely gesture towards a few of them.
First, as mentioned above, durability is something of a red herring. The living originalists cheerfully deny, with a straight face and with real plausibility, that they argue for a “change in meaning” or any such thing. Rather they argue for reading the original and enduring meaning at a sufficiently high level of generality to encompass whatever moral novelties later generations have dreamt up. No amount of insistence that meaning must endure over time comes to grips with their argument.
Second, the argument that grounds originalism in the common good supposes that originalism conduces to stability and durability over time, but there is little reason to think this is true. It is an entirely contingent question whether originalism does or does not, in fact, promote systemic goods of settlement, stability and coordination; and the evidence from our world hardly suggests that it does. In our world, originalism is quite often practiced as a disruptive method, a Protestant method that, taken to its logical extreme, invokes sola scriptura to unsettle doctrines long established in the law. Now the method need not be taken to that extreme — the fainthearted interpreter may flinch from the logical consequences of originalist premises, or claim that the original understanding itself licenses the doctrine of precedent — but the potential for radicalism creates a kind of threatening overhang for any long-standing body of legal doctrine. (Consider the disruptive role of originalism in the spate of recent proposals, judicial and academic, to overturn longstanding doctrines of administrative law). Originalism’s disruptive quality should be unsurprising once we reflect that the original idea of originalism, as it were, was to oppose and unsettle the progressive law made during the Warren and Burger Courts. As with the Protestantism it instantiates, originalism is at bottom a mode of rebellion against an established order and its developing doctrine. This is not, of course, to say that disruption is necessarily bad — it depends on what is being disrupted, and why — but it does make it difficult to defend originalism as a guarantor of stability.
Third, and relatedly, the view we are considering needs to distinguish two very different questions: (1) whether the common good underwrites originalism as of 1789 or 1868; (2) whether the common good underwrites originalism as of, say, 1980 or 2020. These two situations turn out to be very different because in 2020 it is just true that much or most of our law, as practiced since 1789 or 1868, has been profoundly non-originalist. In the second situation, introducing originalism into a (largely) nonoriginalist system threatens the very kind of disruption and discoordination that the view aims to prevent through originalism.
Fourth, while settlement and coordination are important goods, they are hardly the only goods. Second-order considerations are important, but so are first-order ones. The classical tradition emphasizes that justice is the aim of law, and that peace without justice is no true peace at all. If the originalist regime supposedly underwritten by the common good produces a steady, predictable stream of morally horrid first-order results, or merely fails to prevent such results, then the common good condemns rather than supports originalism. At a minimum there should be some reflective equilibrium between the second-order goods of settlement and durability, on the one hand, and evaluation of the justice of first-order outcomes. Otherwise the praise of second-order goods threatens to become a kind of fetish, overriding all first-order considerations in the name of a partial and myopic account of what justice requires.
I have only briefly sketched my objections to the views that attempt to ground the common good in originalism or to ground originalism in the common good. The point of mentioning those views is merely to show that the combination Hammer wants to promote, however appealing it may seem at a political level, is intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water and in the end Hammer, like the rest of us, will have to choose.
There is much to admire in Hammer’s argument. It is a long step away from the libertarian form of originalism that has colonized the legal right at least since the second Bush administration, and that until recently dominated the scene. Justice Scalia’s modus operandi (viewed from the outside; I do not suggest that this was a deliberate strategy) was to stake out a principled position, resting on internally coherent arguments, that would expand the range of the thinkable on the Court, and then to watch his colleagues struggle part-way towards his views with positions that were uneasy compromises. In that Scalian sense, Hammer’s piece, internally conflicted though it may be, amounts to an ominous sign of the times for conventional originalists. When a prominent young conservative commentator like Hammer expressly rejects “pure legal positivism and the elevation of procedure to the complete detriment of substance, most frequently associated with the jurisprudences of the late Judge Robert Bork and the late Justice Antonin Scalia,” one can almost feel the winds of change freshening.