Vol. 15 No.10 (October 2005), pp.903-910

 

THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM, by Dennis J. Goldford.  Cambridge University Press, 2005. 318pp. Cloth $75.00 / £45.00. ISBN: 0-521-84558-8.  Paper. $29.99 / £19.99. ISBN: 0-521-60779-5

 

Reviewed by Jack Wade Nowlin, University of Mississippi School of Law, jnowlin [at] olemiss.edu .

 

Dennis J. Goldford is an associate professor of politics at Drake University and Director of the University’s Program in Law, Politics, and Society. His book, THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM, is an incisive and innovative examination of the theoretical foundations of the originalism-nonoriginalism debate and of the common assumptions about the Constitution and constitutionalism that provide the groundwork for originalist and nonoriginalist interpretive approaches. It includes detailed discussions of the politics of originalism, the concept of the living Constitution, interpretivism and originalism, problems of legal objectivity, and the epistemology, ontology, and political character of constitutional discourse. The book also draws on the scholarship of Michael Perry, Keith Whittington, and Lawrence Lessig among many others.

  

Goldford observes that “controversies in constitutional theory” are the “legal expression of essentially political conflict,” the “theoretical and principled expression of intensely partisan, practical concerns” (p.1). With this view in mind, Goldford’s aim is to uncover “the structure of premises about constitutional interpretation that generates the debate between originalism and nonoriginalism precisely in order to move beyond that debate” (p.x).  In place of the originalism-nonoriginalism dichotomy, Goldford develops an interpretive theory to which he refers as “‘interpretive constitutional textuality,” a form of textualist interpretive theory that “allows [one] to understand the essential nature of constitutional discourse as classical political theory would have it – public deliberation over what constitutes the common good under a written constitution” (p.18). This interpretive analysis is part of the project of clarifying the way in which the Constitution is “constitutive” and how this “constitutive” nature accounts for both the Constitution’s “democratic character and binding capacity” (p.16). Goldford’s goal, in sum, is to analyze the “nature of constitutional interpretation” in order to explore “the nature of American constitutionalism” and illuminate the “essentially constitutive” character of the Constitution, which in turn will cast new light on the traditional debates over originalism and its rivals and on future directions for analysis (p.1).

 

In Goldford’s view, the errors of originalism can be found in its chief claim, seen in its conception of the relationship of the following two propositions:

 

P1:  What binds the future is the constitutional text. [*904]

P2 : What binds the future is the original understanding of the constitutional text.

 

For originalism, both P1 and P2 are the same proposition, with P2 serving as a simple – if crucial – elaboration upon P1. Originalists typically identify P1 with P2 in an effort to “settle” the meaning of the constitutional text, and to “settle” it authoritatively by turning to the understanding of those persons in the privileged position of having written the text, the framers, or rendered it legally operational, the ratifiers. Goldford contends that the originalist identification of P1 with P2 in essence rejects or undermines both the binding capacity of the Constitution and its democratic character. On this view, originalism rejects or undermines the binding capacity of the Constitution – which Goldford appears to understand as principally the constitutional text – because originalism views the text of the Constitution as indeterminate (or under-determinant), and thus also views the text as containing no (or insufficient) determinant content capable of “binding” the future. Originalism thus seeks the Constitution’s binding capacity in something beyond the constitutional text itself, a more fully determinant interpretation of the text, that of the original founders who wrote and ratified it.  Originalism, then, does not view the constitutional text as truly binding, or at least not sufficiently so, and turns to extra-textual sources of interpretation to render it (more) determinant and to realize (better) its binding capacity. Thus, in Goldford’s view, “orginalism considers itself necessary” because of its “disbelief in the binding capacity of language,” including, of course, the language of the constitutional text, though belief in the binding capacity of the constitutional text is, Goldford contends, at the heart of American constitutionalism (p.13)

 

In Goldford’s view, originalism also undermines the democratic character of the Constitution – again, which Goldford understands as the text of the Constitution – for reasons which also concern textual indeterminacy and the felt-need to rely on an authoritative interpretation. Because originalism views the constitutional text as in- or under-determinant and thus seeks to be bound by a putatively more determinant and authoritative interpretation of the text, that of the founders, originalism insulates debate about constitutional understanding from contemporary democratic resolution. Thus originalism does not view the Constitution (i.e., the constitutional text) as truly democratic in the sense of subject to contemporary democratic debate about its meaning, but rather originalism seeks to ground constitutional meaning beyond contemporary democratic debate in the original understanding that may be found in constitutional history. In sum, Goldford maintains that originalism holds that “WE [contemporary Americans] do not – and, indeed, cannot – decide what the Constitutional means; rather, the Framers and/or ratifiers decide, and our obligation is but to obey” (pp.14-15).

 

Goldford’s rejection of originalism should not be viewed as an endorsement of nonoriginalism, which Goldford maintains suffers from some of the same core theoretical flaws as originalism.  For instance, nonoriginalists, in Goldford’s view, may also be thought to reject the binding capacity of the [*905] constitutional text in much the same fashion as originalists by asserting that the text of the Constitution cannot truly bind because of its indeterminacy. Nonoriginalists, then, may also attempt to render the meaning of the constitutional text more determinant by privileging a putatively authoritative interpretation of the Constitution, grounded, for instance, in a particular moral theory. Instead of endorsing non-originalism, Goldford seeks to transcend the debate between originalism and nonoriginalism by developing a theory which is neither conventionally originalist nor nonoriginalist.

 

Goldford’s interpretive theory is an “interpretive” form of textualism which seeks to explain the constitutive nature of the Constitution as well as its binding capacity and democratic character. Goldford’s theory of interpretive textualism contends, first, that “we [Americans] are a people who constitute ourselves as a people in and through the terms of a fundamental text” (p.17). Thus, the constitutional text is constitutive of the American political community and structures political debate about the common good in terms of a written document. Second, as to the text’s binding capacity, Goldford asserts that “the meaning of constitutional provisions – is fixed” by the text, but that “our understanding, our interpretation, of that meaning is changeable” (p.57).  This is the essence of the “interpretive” aspect of interpretive textualism, the text itself binds the future, accounting for the Constitution’s binding capacity, but the interpretation of the text changes, and no interpretation – such as that of the founding generation – can claim a privileged position. Third, on the democratic character of the Constitution, Goldford contends that we, contemporary Americans, decide what interpretation(s) of the Constitution to accept and that such a democratic debate about the most persuasive understandings of the meaning of the Constitution accounts for its fundamentally democratic character.  

 

While this thumbnail sketch of Goldford’s critique of originalism and his theory of “interpretive textuality” cannot do justice to his analysis, it can serve as a basis for exploring a few of the implications of his work which may cast additional light on the nature of his project. Although Goldford never directly addresses the question of the supremacy or supreme authority of judicial interpretations of the Constitution over the interpretations of (other) political actors, such as Congress or the states, his analysis seems inevitably to call this practice into question. Indeed, the impulse behind originalism – a concern about the under-determinacy of the text of the Constitution that drives the assertion of a need to repair to a more determinant interpretation of that text, one which is privileged above other interpretations because it is deemed authoritative in some respect – is quite similar to the impulse behind judicial supremacy.  Indeed, judicial supremacy is also driven, one might think, by the felt-need to settle1 the meaning of the under-determinant constitutional text through deference to a source of interpretation considered to be authoritative, the decisions of the Supreme Court, the institution, under the separation of powers, thought to be charged with the interpretation of the law, including the law of the Constitution.2 If originalism [*906] involves a rejection of the binding nature of the constitutional text qua text and seeks instead to “settle” constitutional meaning by privileging an interpretation of the text (the founders’ interpretation) beyond ordinary democratic debate, judicial supremacy similarly settles constitutional meaning by privileging the interpretations of the text favored by the Court, an unelected and electorally unaccountable institution insulated from most of the effects of ordinary democratic debate.

 

Moreover, Goldford’s definition of his theory of interpretive textuality, “public deliberation over what constitutes the common good under a written constitution” (p.18), sounds very much like an extra-judicial political understanding of constitutional interpretation, if public deliberation is indeed meant to be a truly democratic political discourse, as Goldford maintains, rather than an elite judicial one. Indeed, as Goldford suggests, “the idea of a privileged standpoint [which originalism asserts for the founders] is incompatible with the idea of the legitimacy of difference that is the crucial presupposition and raison d’etre of politics and political argumentation” (p.291). And the same would seem to be true for the “privileged standpoint” which the judicial supremacist view asserts for the Supreme Court. Additionally, Goldford tellingly observes that Thomas Jefferson – departmentalist and opponent of judicial supremacy – was “correct to point to [the] essentially political nature” of constitutional interpretation, “[e]ven [though] Hamilton’s notion that constitutional interpretation is a technical, legal matter to be decided by courts won out over Jefferson’s notion that it is rather a value-laden political matter to be decided by the legislature and the people themselves” (p.286). This statement is certainly suggestive of the view that Jefferson was right, not only about the political nature of constitutional interpretation, but also about the institutional implications that follow from that political nature, and, thus, right to reject the primacy of courts in constitutional interpretation in favor of greater legislative authority. In sum, Goldford’s theory suggests that judicial supremacy is based on a misunderstanding of the nature of constitutional interpretation quite similar to that of orginalism, a misunderstanding that may also be thought to reject or undercut both the binding capacity and democratic character of the text of the Constitution.

 

 A further interesting issue arises from Goldford’s view that the recognition of interpretive textualism as the proper interpretive approach – transcending originalism and nonoriginalism – ultimately means “legitimating difference and disagreement,” treating debate over constitutional meaning as an “affirmation of  constitutionalism,” not a “betrayal” (p.202). This is so, Goldford maintains, because the essence of constitutionalism is satisfied by the binding capacity of the text itself without the need for privileged interpretation of the text (p.201). It is also true, Goldford argues, from a nonfoundationalist perspective, because there simply is no privileged interpretation, no “normative standard outside of interpretive debate,” whether originalist or nonoriginalist, to which one can appeal, but only the text and “the discourse of constitutional interpretation itself,” and thus “[t]here is and can be no demonstration” of [*907] substantive correctness in interpretation (p.201). Debates over constitutional interpretation, on this view, involve “nothing more and nothing less than persuasion” that an interpretation of the text should be accepted without even the possibility of a substantive demonstration that it is in fact “right” by virtue of an authoritative interpretation.  Thus, there is no basis for treating interpretations of the text that one finds un- or less persuasive as illegitimate or as a betrayal of constitutionalism or the Constitution. Goldford thus concludes that originalism is wrong to reject the “legitimacy of [nonoriginalist] argument,” wrong to pose the choice between originalism and nonoriginalism as the choice between the “alternative[s] of conformity and rebellion” with respect to the authority of the Constitution (p. 291).

 

Whatever one may think of either Goldford’s thin textualist conception of constitutionalism or his rejection of the possibility of demonstrating substantively right answers to constitutional questions, it is worth exploring for a moment the relationship of his argument to the concept of constitutional illegitimacy, especially as this argument may relate to assertions of unconstitutionality. This issue arises because, once one accepts a reading of the Constitution as “persuasive” (though, of course, on Goldford’s view, not demonstrably right, since no such demonstration can occur), one may be forced to conclude that an act of government premised upon a rival reading of the Constitution is in conflict with the Constitution and thus is unconstitutional and “illegitimate” in a central sense of the word (i.e, not in accordance with law). Moreover, this  point comes full circle to the question of (il)legitimacy in the act of constitutional interpretation itself – whether by courts or other governmental actors – because an act by one institution of government, such as a court, declaring another act of government unconstitutional can itself be challenged as inconsistent with the Constitution, or more bluntly, as unconstitutional. Consider, in this context, the following passage from Justice Black’s GRISWOLD dissent:

 

There is no provision of the Constitution which either expressly or impliedly rests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great UNCONSTITUTIONAL shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.3

 

Indeed, Goldford seems to recognize something very like Justice Black’s point, observing that when “originalism justifies its claim to exclusive interpretive legitimacy in terms of democracy, rule of law, separation of powers, and the like, it is doing nothing [*908] other than making an argument in terms of the fundamental principles – the political theory – of our social compact” or Constitution (p.287).  Thus the originalist claim that judicial interpretations of the text of the Constitution should be grounded in a determinant and authoritative source of law, the original understanding, can itself be grounded in an analytically prior invocation of the broad principles of the Constitution which originalists may believe justify originalism as the proper interpretive method for judges. Not surprisingly, then, originalists who hold this view also routinely assert that  judges who deviate from the original understanding seriously undermine or indeed violate the principles of the Constitution that justify originalism. The same analysis obtains for judicial supremacists, who may justify the interpretive supremacy of the Court in terms of constitutional principles of the separation of powers and the Rule of Law, and who may (therefore) also contend that rival assertions of interpretive authority by, say, Congress or the States in conflict with judicial supremacy (e.g., departmentalism or nullification) violate the Constitution and thus are illegitimate in a fundamental sense.

 

Significantly, then, if it is legitimate to debate the fundamental principles of our Constitution and to assert one’s understandings of the Constitution as persuasive, one might well think that it is also legitimate to assert that acts of government in conflict with one’s understanding are unconstitutional and thus “illegitimate” in at least one important sense of the word. If such assertions of unconstitutionality are not in fact legitimate, then the recognition of “legitimate disagreement” over constitutional meaning would seem incompatible with assertions of unconstitutionality, a disturbing conclusion. If such assertions of unconstitutionality are in fact legitimate, then originalists and nonoriginalists (and judicial supremacists and departmentalists) may invoke basic constitutional principles to say that their rivals are acting contrary to the Constitution. On this latter view, paradoxically, the recognition of initial legitimacy of disagreement about constitutional meaning appears to entail the legitimacy of disagreement about unconstitutionality, thereby legitimating rival assertions of unconstitutionality or constitutional illegitimacy. In sum, then, it if far from clear that the recognition of the legitimacy of rival interpretations of the Constitution should be thought to disable an originalist form asserting that nonoriginalist judicial action is illegitimate in an important sense (i.e., in tension or conflict with the law of the Constitution and thus unfaithful to it) or preclude a judicial supremacist from asserting that, say, nullification is illegitimate in the same fashion – anymore than it should be thought to prevent a court from invalidating an act of a legislature as unconstitutional. 

 

Finally, the fact that originalists – as well as judicial supremacists – may justify their position by invoking principles found in the constitutional text raises an additional point about the evolution of constitutional discourse under Goldford’s theory of interpretive textualism, which endorses robust democratic debate about the more and less persuasive interpretations. If  the principles found in the constitutional text are properly invoked in democratic [*909] debate about constitutional meaning, and if, as Goldford seems to recognize, the principles in the text can be invoked in support of particular authoritative interpretations of the text – by originalists (appealing to the authority of the founders in part as a necessary constraint on the power of judges under the separation of powers and federalism) and also by judicial supremacists (appealing to the authority of the U.S. Supreme Court in part as a necessary constraint on the power of legislators under the separation of powers and federalism) – one may wonder whether such debate is a natural outgrowth of  interpretive textualism or is instead inconsistent with it, as Goldford’s analysis also suggests. For instance, one might think that such debates are simply part of the political process of popular discussion concerning such basic questions as whether the most persuasive interpretation of the Constitution’s principles either require judges to defer to the original understanding of the founders or require legislators to defer to the “precedential” understanding of the judges – or both. Perhaps the counter-point here may be as simple as the concept of inalienability: The people, even democratically, cannot alienate their democratic authority to decide what the Constitution means by deferring to the authority of “undemocratic” actors, such as the founders or the Court, even if that deference is revocable by the people democratically and itself flows from a popular understanding of the Constitution that favors interpretive deference on most questions. If so, the question of whether the democratic decision to defer to an authoritative interpreter is an appropriate exercise of democratic authority or an inappropriate (though revocable) extinguishment of that authority remains far from clear.

 

In any event, THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM is interesting, well-researched, thought-provoking, and thus well worthy of a careful reading. In sum, Goldford’s book is a praiseworthy addition to the perennial debates over constitutionalism and interpretive methodology.

 

NOTES:

1.  This concern about “settlement” may involve an aspect of resolution of disagreement about constitutional meaning and/or an aspect of simple authoritative enforcement of constitutional norms on potential violators of the Constitution.  See, e.g., Alexander and Schauer (1997, at 1369-1371) (defending judicial supremacy via the “settlement” thesis concerning the importance of authoritative resolution of constitutional disputes); FEDERALIST 78 (Alexander Hamilton) (observing that “specified exceptions to the legislative authority” as constitutional limitations “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void”).

 

2.  FEDERALIST 78 (Alexander Hamilton) (“The interpretation of the laws is the proper and peculiar province of the courts”); MARBURY v. MADISON (1803) (“It is emphatically the province and duty of the judicial department to say what the law is”).

 

3.  GRISWOLD v. CONNECTICUT (1965) (Black, J., dissenting) (emphasis added).  Cf. OREGON v. MITCHELL [*910] (1970) (Harlan, J., concurring in part and dissenting in part) (“When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect”).

 

REFERENCES:

Alexander, Larry, and Frederick Schauer.  1997. “On Extrajudicial Constitutional Interpretation.”  110 HARVARD LAW REVIEW 1359-1387.

 

CASE REFERENCES:

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

 

MARBURY v. MADISON, 5 U.S. 137 (Cranch) (1803).

 

OREGON v. MITCHELL, 400 U.S. 112 (1970).

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© Copyright 2005 by the author, Jack Wade Nowlin.