There are a number of arguments advanced for various forms of originalism. The discussion among Balkin, Barnett, and Solum of last week is ample evidence of that. And in considering what to say about the various versions of originalism, one must distinguish the arguments based on a claimed superior interpretive structure or method from those claiming normative political force. The latter, which Barnett strongly suggests, and which to a lesser degree Solum seems to endorse and Balkin to admit, is not sustainable. The notion that some form of originalism provides a foundation for political obligation is erroneous. It is possible that a form of originalism follows from political obligation -- which should be understood as an obligation to obey and adhere to the Constitution (for those citizens of the United States of America). As I say, it is possible originalism follows, but it cannot lead. Because it cannot lead to or ground such an obligation, it can offer nothing in the way of normative political argument. The failure of originalism on this level is shown I believe by structural features of such theories. An originalism must be grounded, as a set of normative (extra-interpretive) claims in the view that the present are bound in virtue of something believed or expressed by the long dead. That tendentious way of phrasing the point is intended to highlight in simple form the structural defect of the entire approach (as a source for political obligation). It makes little or no difference if the Constitution has majority or super-majority requirements, and it makes no difference if the originalism is intent or meaning or public understanding, because none of them provide a foundation for any duty or obligation flowing to or binding on those in no sense present at the adoption. To put the matter in a slightly more technical way, originalism could provide a foundation for obligation only to the extent it reflects contractual or quasi contractual agreements (the latter may encompass Hume’s solution). But such agreements entail the continued presence of the parties, or some plausibly intentional and direct assumption of the duties by others in virtue of something like assignment. But nothing like that can be plausible for a relationship such as that found within the bounds of the Constitution. Which can be put in terms of the very well known and well developed set of obstacles to consent theory as a basis for political obligation. Of course, if one assumes that consent theory has been reconstructed and made successful, and that it applies somehow to the Constitution, there may well be a good argument for some form of originalism. But it hasn’t and so there isn’t. Indeed, the failure of consent theories, and the inevitable turn to other kinds of foundations suggests serious difficulties for originalism as an interpretive theory because originalism is less likely to be sensibly connected to such normative theories. By way of example, it is doubtful that one would arrive at a particularly robust form of originalism if one thought the normative foundation for the Constitution lay in something like a Rawlsian derivation.
The problem is one Barnett is surely aware of -- his book Restoring the Lost Constitution expressly undertakes to address it. Although he has many interesting sections in the book, in the end Barnett drops the subject without ever providing anything that might count as a solution. (In archives of CR, you can find about a dozen posts on the book, notes and reactions as I read it.)
Rappaport tries a related and similarly unsuccessful route to originalism, asserting that supermajority requirements can ground the normative claim of the Constitution. (I have not read the article yet, so this must be tentative.) It is hard to see why supermajoritarianism would even matter. Whatever the prudential (or other) argument supporting reliance on supermajorities, nothing about the size of a majority alters the nature of the obligation consequent to its actions (if any). The fundamental problem remains, and that is consent.
It is worth noting that the "amendment by 9 unelected judges" line is a bit of (good) rhetoric, but unpersuasive on examination.It is grounded in an untenable view of interpretation and history. The simple fact is that, on any account which would yield the rhetorical turn, such amendment is ineluctable. To dwell on the obvious, the passage of time makes such amendment unavoidable. For example, someone must make a decision about whether radio broadcasts are within the purview of the Constitution, and nothing in original intention, understanding, meaning, or application could possibly solve that problem without constituting what would count for Rappaport as amendment.
I do not think that Solum or Balkin or Rappaport or Barnett have met Leiter's complaint as yet. (See the More at the end of Leiter's post.) I doubt that in the end they can. But it is a discussion worth following.
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