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< | Note: I am using this space for comments, brainstorming, and outlining for the time being | | | I set out to assault originalism using key moments in the creation of the United States constitution as evidence that originalism leads to absurdity. From that conclusion, I planned on arguing - along standard lines - that originalism is best understood as cover for political claims that would sound "off" if stated plainly. My plan was simple: borrow from Jack Rakove's "Original Meaning" a summary of the secondary literature, retell a few key points in Michael Kamman's "A Machine That Would Go of Itself," and rely on what I remember from class to point me to the pieces of Madison's notes that Professor Moglen had effectively sanctioned. But I encountered a dilemma.
The Dilemma: If the constitution should be interpreted as a system of arrangements, then originalism lacks bite, for the arrangements of yesteryear should not be expected to resolve today's conflicts. Yet, if the constitution is merely a system of arrangements, then nothing should legally constrain political entrepreneurs from questioning and indeed undermining constitutional law for the sake of a more efficient set of arrangements. This is clearly not the case - though political entrepreneurs of an anti-constitutionalist stripe have emerged throughout American history, the uniquely republican character of American constitutional thought and legal doctrine remains intact. Thus, there appears to be some kernel of the United States constitution that defies the demands efficiency makes to update the nation's founding arrangement without limit. How can such a kernel be explained? The answer, I believe, must recognize an underlying faith throughout the American legal tradition in some version of originalism. | |
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< | This short essay explores the makeup of that kernel.
What is the kernel? It is a set of beliefs justified by faith as opposed to the set of arrangements justified by efficiency common to most constitutional doctrines
What is the set of beliefs? Distrust of authority, and from this distrust, faith in federalism
Objection: Isn't this "faith" really just an arrangement that no longer makes sense? (idea being that federalism made sense as an arrangement for even a large nation for the reasons Madison put forth in Fed Paper 10, but technology and population growth have rendered Madison's arguments irrelevant)
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- No. (a.) compare Madison's arguments with the system codified in the constitution (seems like factions are very possible; indeed, the electoral college looks like an institution created to house faction leaders - unrealistic to expect the state's to choose electors lacking national "faction-like" appeal); (b.) Madison's understanding of federalism - and indeed his understanding of what the constitution did to the existential nature of the states - was not uniformly shared in his day or any other; (c.) it is very unclear if the type of federalism Madison advocated was needed to actualize the efficiency-based arrangements contemplated by the rest of the constitution (ratification would have surely been easier with a more state-friendly approach, and efficiency would have preferred a stronger centralized state; neither demand required the actual solution)
Conclusion: Belief in American-styled federalism is an article of faith throughout the American legal tradition and indeed much of society. If this faith is indeed the unchanging kernel of the constitution, then any attempt to move away from it would necessarily be revolutionary (the result, if such a movement were successful, would no longer be the United States of America as previously understood; this is different from, say, a change in tax policy). But, the demands of efficiency have become ever more pressing in the 21st century. And a generation of M&A minded individualists is set to take over the levers of power. If the foregoing analysis is correct, the next generation of political leaders will challenge doctrines traditionally supported by the belief in federalism, and if this generation succeeds, it will signal the end of constitutional limitation on technocratic governmental innovation.
Of course, "efficiency" makes no demands; that is the job of capitalists. Defeat of federalism by technocratic efficiency-hawks would resolve the question, "democracy and capitalism, or democracy or capitalism?" in favor of the latter.
-- JeffreyGlass - 05 Nov 2016
Hmmm, I am not sure how to edit this. The dilemma can be broken down as follows: | >
> | The dilemma can be broken down as follows: | | | (a) The originalist approach resolves constitutional issues by deferring to the intent of those persons "closest" to the constitution. This approach attributes far-sightedness and intent to actors which can only be described as faith-based. An arrangements interpretation of the constitution is inconsistent with originalism, for it stipulates that the terms of the constitution exist as arrangements among conflicting interest groups and not some well-thought out, long-term (indeed, never-ending) policy
(b) the arrangements interpretation suggests that constitutional law should change without limits as the circumstances to be arranged change.
(b) but empirically, there has been at least one limit - the federal character of the American Republic (as compared to, say, the 20th century French parliamentary system) | |
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< | (c) either the federal character has remained intact because it has efficiently fit into each subsequent arrangement, or the federal character has remained intact for some other reason
(d) it seems unlikely that the federal character can be justified on efficiency grounds at various points in United States history (the world wars, the Civil Rights movement, post-Civil War reconstruction, etc.) | >
> | (c) either the federal character has remained intact because it has fit into each subsequent arrangement, or the federal character has remained intact for some other reason
(d) it seems unlikely that the federal character can be justified based on "fit" (the world wars, the Civil Rights movement, post-Civil War reconstruction, presidential elects elected by a minority of voters, etc.) | | | (e) there must be some other reason | |
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< | That is the basic dilemma. I then propose that belief in originalism is the other reason. This is a belief that Americans have chosen to uphold through each generation. It is not efficiency-maximizing - rather, it is a limit on efficiency that the American people have chosen because it suits us. | >
> | That is the basic dilemma. At least one term needs additional clarification, "fit." The "fit" I am talking about is the relationship between a feature of American governance and the demands placed on government in time. Some governance structures fit better times than others - state equality surely fit the need of early America to inhabit the continent. At other times, governance structures are revealed to be especially unfit - the lack of government intervention in the economy under Hoover seems like a safe example. | | | | |
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< | -- JeffreyGlass - 05 Nov 2016 | >
> | Thinking more about "fit" makes me remember Professor Moglen's criticism of the use of "we" when talking about American history. The other reason could be, not other to the society trying to fit governance to need, but part of it. Originalism can be understood as an ideological doctrine that envisages a governance structure that would not fit well for American society as a whole but would fit well for some particular sub group. In that case, the "other reason" is insurrection - originalism is maintained, because some political group has interest in it and sufficient power to keep the doctrine lively. Or perhaps different political groups at different times keep the doctrine lively to suit their own purpose. Either way, despite the claims of many originalists to adhere to constitutional intent, the doctrine itself is best thought of as a stand-in for a certain type of insurrection, one led by a sub group of the "we" against the timely interests of the "we" as a whole. | | | | |
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< | So, the conclusion is that originalism has a lineage going back to the original debates over how the constitution should be interpreted, but that lineage does not prove that the doctrine should have bite. The should question depends on the assumptions that support originalism and whether or not they are justified. | | | | |
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< | -- JeffreyGlass - 18 Nov 2016 | | | |
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