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Debate Club
DEBATE CLUB 5/2/05

Constitution in Exile?

Cass Sunstein and Randy Barnett debate.

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To some, restoring the "Constitution in Exile," as Judge Douglas Ginsburg dubbed it in 1995, means having the federal courts encourage freedom. To others, it's the signature of a movement to roll back health, safety, and wage regulations to where they were 70 years ago, before the Supreme Court embraced the New Deal.

Does the "Constitution in Exile" herald a movement to promote, as Ginsberg wrote, "a second coming of the Constitution of liberty." Or does it mean something else?


Cass Sunstein is Karl N. Llewellyn Dist. Service Prof. of Jurisprudence at the University of Chicago. Randy Barnett is Austin B. Fletcher Professor at Boston University School of Law.

Sunstein: 5/2/05, 09:06 AM
The idea of a "Constitution in Exile" can be understood in different ways. Consider two pretty radical possibilities.

(1) Judge Ginsburg understood the Constitution in Exile to refer to the Constitution of around 1930, before Roosevelt's New Deal. As he writes, that Constitution—our real Constitution—sharply limited Congress' power by, for example, forbidding a National Labor Relations Act or a national ban on child labor. Judge Ginsburg also believes that the Constitution in Exile forbids Congress from "delegating" its authority to administrative agencies, such as the Environmental Protection Agency, by giving them broad discretion. Judge Ginsburg believes that since 1930, the Supreme Court has "blinked away" individual rights, above all the right to private property—and created rights of its own choosing, like the right to choose abortion.

For Judge Ginsburg, and for some others, the court had the Constitution right in 1930. The Rehnquist Court has made a few modest movements toward the Constitution of that year, and some people would like it to be much bolder.

(2) Other people are "originalists." Like Justices Scalia and Thomas, they want to interpret the Constitution to mean what it meant when it was ratified. For originalists, the Constitution in Exile is the original Constitution—the document in 1787, when first ratified, or as of the date of later amendments. Originalists don't use the phrase Constitution in Exile, but they want to go back to the founders.

There may be an overlap between the Constitution of 1930 and "originalism"—at least if the Court, in 1930, was interpreting the Constitution in a way that fit with the original understanding. That's a major and disputed question. Judge Ginsburg describes himself as an originalist, and he writes as if the Constitution of 1930 was basically faithful to the original understanding.

Would the Constitution of 1787, or of 1920, increase our liberty or diminish it? For now, let's just notice the real radicalism of any effort to go in that direction. In 1787 and in 1920, racial segregation by the federal and state governments was believed to be constitutional. In 1787 and 1920, sex discrimination by government was just fine. In 1787 and 1920, there was no general right of privacy. In 1920, free speech was understood quite narrowly. Congress would almost certainly have been forbidden to protect workers' right to strike. In 1920, minimum wage laws were unconstitutional.

Maybe we understood liberty better in 1787, or in 1920, than we now do. But a return to either period would be a radical program—and it would ask federal judges to embark on a project of activism that would make Roe v. Wade look like child's play.

Barnett: 5/2/05, 11:43 AM
Let me begin this week-long exchange, Cass, with a denial. There is no "Constitution in Exile" movement, either literally or figuratively. As for literally, I and others had not even heard the expression, plucked from an obscure book review by Judge Douglas Ginsburg, until well after folks like you and Jeff Rosen had started using it to describe their intellectual opponents. And as author of the 2004 book, Restoring the Lost Constitution: The Presumption of Liberty, I would seem to be at the heart of whatever movement supposedly exists.

For obscure reasons that we may perhaps glean from this week's debate, the phrase "Constitution in Exile" viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these "originalists" sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.

Cass, you say the "Constitution in Exile" refers "to the Constitution of around 1930, before Roosevelt's New Deal." The problem here is that I know of no one (including Judge Ginsburg), whether originalist or not, who entirely agrees with the Supreme Court's interpretation of the Constitution in 1930 or at some earlier point. To take but one example, many originalists like Justice Scalia entirely reject the Due Process Clause jurisprudence of the pre-1930s Supreme Court. In contrast, many progressive law professors today think that the Supreme Court was correct in 1923 when it used the Due Process Clause to protect the right of parents to send their children to schools that teach foreign languages and in 1925 when it used the Due Process Clause to protect the right of parents to send their children to private schools. Both of these cases remain good law today. From an originalist perspective, I agree with today's progressives and disagree with Justice Scalia, though I think these cases should have been grounded on the original meaning of the Privileges or Immunities Clause rather than on Due Process. (So even here I contend that the Supreme Court was wrong in the 1920s.) Indeed, I could name many other important examples of disagreements by today's originalists with the jurisprudence of the Supreme Court before 1937.

Is a commitment to the original public meaning of the entire text of the Constitution as amended accurately characterized as a commitment to a "Constitution in Exile," as you suggest? In defense of this claim, you might point out that my book is entitled "Restoring the Lost Constitution." But my space for today's contribution is already used up, so I will defer further discussion of the merits and demerits of originalism, and what is meant by a "Lost Constitution," until later. Stay tuned.

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Sunstein: 5/3/05, 09:00 AM
Might we step back a bit? I'm going to offer a little terminology and what I hope will be a few clarifications.

Judge Ginsburg speaks of the Constitution in Exile—the Constitution in 1930, which he celebrates and seeks to recover. But, you, Randy speak of the Lost Constitution, which you also want to recover.

Justices Scalia and Thomas, among many others, want to move toward the original Constitution, with Justice Scalia endorsing, at some length, what he calls "originalism." Ginsburg, you, Scalia, and Thomas share the view that the Constitution as amended should be interpreted to mean what it originally meant. (Of course there is disagreement about whether the Constitution in 1930 fit, in all respects, with the original understanding.)

Taken seriously, originalism is a truly radical program. It should mean, for example, that the national government can discriminate on the basis of race and sex—because the Equal Protection Clause doesn't even apply to the national government. Do you believe that the national government can discriminate on the basis of race and sex? Can the national government segregate the public schools in the District of Columbia?

I don't much like the phrase "Constitution in Exile," but it's evocative, and Judge Ginsburg is a first-rate judge. The phrase the Lost Constitution, or the original Constitution (as amended), would do just as well. So I wonder if, for current purposes, we simply follow your formulation and refer to the Lost Constitution—or, if we prefer to refer to a genuine movement, we can refer to the Original Constitution.

Actually I think that the movement in question is best described as a kind of legal fundamentalism: The view that the Constitution should be read to conform to its original meaning. This view isn't at all far from fundamentalism in religion, and I think the term is illuminating, whether or not Lost Constitutionalists, or originalists, would like to use it.

There are two obvious problems with legal fundamentalism (or Lost Constitutionalism, or Originalism, or whatever we should be calling it).

First, many fundamentalists aren't true to their own creed. Justices Scalia and Thomas have voted to strike down affirmative action without consulting the original understanding! There's a lot of historical work suggesting that affirmative action doesn't violate that understanding. But Scalia and Thomas haven't said a word about it. This suggests that part of the time, fundamentalism is a partisan program in historical guise.

Justices Scalia and Thomas have also voted to ban Congress from giving citizens the power to go to federal court to enforce environmental law—without consulting the original understanding. There's a lot of history suggesting that Congress has the authority to allow citizens to go to federal court to enforce the law. Justices Scalia and Thomas haven't said even a single word about that history. (I could give many other examples.)

Second, fundamentalism, or recovery of the Lost Constitution, would require federal judges to make radical changes in current constitutional law—and in many places, ask courts to embark on an extraordinary program of judicial activism.

Judge Ginsburg (though no activist on the bench) thinks that the court have have struck down the National Labor Relations Act. Many fundamentalists, including you, Randy, would like the Court to strike down a range of federal enactments as beyond Congress' power under the commerce clause. Justice Thomas would allow states to establish official religions. Many originalists believe that Congress can't give a lot of discretionary power to federal agencies—so their Constitution would cast doubt on the Federal Communications Commission, the Occupational Safety and Health Administration, the National Highway Traffic Safety Administration and the Environmental Protection Agency (under the Clean Air Act).

During the controversy over the nomination of Judge Bork to the Supreme Court, Judge Richard Posner, a Reagan appointee, produced an ingenious little paper called "Bork and Beethoven." Posner noticed that the conservative magazine, Commentary, had published an essay celebrating Bork's fundamentalism in the same issue in which another essay sharply criticized the "authentic-performance movement" in music, in which musicians to play great composers on the original instruments. Posner observes that the "two articles take opposite positions on the issue of 'originalism'—that is, interpretive fidelity to a text's understanding by its author." While one essay endorses Bork's fidelity to the views of people in 1787, the other despises the authentic-performance movement on the grounds that the music sounds awful. If originalism makes bad music, Posner asks, "why should the people listen to it?"

It's a good question.

Barnett: 5/3/05, 01:43 PM
No sooner do I start to get what "Constitution in Exile" entails, Cass, than you want to switch the term to "constitutional fundamentalism." Before going there, let's finish the topic of this debate.

Apparently, because many progressive law professors judge constitutional law solely on the basis of the results reached, they think that their intellectual opponents are just the same. So "Constitution in Exile" connotes a supposed desire to "return" to the bad old results of the 1920s and 1930s. But originalism is not about results—or more accurately, it is only indirectly about results.

Originalists consider a written constitution to be a structural feature of our constitutional system like bicameralism, separation of powers, and federalism. The principal benefit of a written constitution is that it subjects judges, legislatures, and executive officials to rules and principles that they cannot unilaterally change—even to reach results that these officials (and law professors) consider superior than those provided by the text of the written constitution as enacted. Unless the meaning of the text as enacted remains the same until it is properly changed in writing, judges will dictate the Constitution rather than the Constitution dictating how judges rule.

Given a sufficiently good constitutional text, originalists maintain that better results will be reached overall if government officials—including judges—must stick to the original meaning rather than empowering them to trump that meaning with one that they prefer. So while the ends certainly do matter to originalists, so too do the means of enforcing a written constitution. And good ends do not by themselves justify bad means, such as the power of judges to overrule the enacted meaning of the text.

Does this mean that Justices Scalia and Thomas, in particular, always practice originalism consistently or accurately? Hardly (and maybe later in the week I will have space to explain why I think they sometimes go wrong). But originalism provides a basis on which they can be criticized regardless of the results they may reach. In other words, if an originalist judge acts in a purely result-oriented way, his or her failure to follow an originalist methodology is a red flag that something is amiss.

How do we criticize a non-originalist judge except by whether we approve of the results? "I like Nozick; you like Rawls. What else is there to say?" goes the quip. The abandonment of any method of constitutional interpretation that is independent of results is what has led to the downward spiral over nominating judges. If only results matter, then you need to vet nominees for their views about lots of results, and only approve those with whom you agree.

So now it easier to see the difference between the "Constitution in Exile" and the "Lost Constitution." Whereas the former is allegedly all about a list of pre-1937 results, the latter is about restoring various provisions of the written text that have been gutted or weakened by judicial decisions. Here is only a partial list of important "lost" clauses: The Commerce Clause and the Necessary and Proper Clause (both expanded by the Supreme Court to the point they provide no limit on federal power), the Ninth Amendment and Privileges or Immunities Clause (both entirely eliminated by judicial opinion). In my book, I examine the original meaning of each of these widely-ignored portions of the text.

But enough about me. What do you think of these lost clauses, Cass? Do you approve of the complete rejection of the Privileges or Immunities Clause in The Slaughter-House Cases? Do you think that the Ninth Amendment is properly held to be a constitutional dead letter as the Court held in 1947? Do you agree with the pre-Lopez/Morrison interpretation of the Commerce Clause that gives Congress an unlimited power over virtually any activity in the United States? Do you agree that the Necessary and Proper Clause empowers Congress to adopt any law that, in its sole opinion, is "convenient"?

Most fundamentally, Cass, what is your theory of constitutional interpretation against which originalism is being compared? Does it amount to anything more than telling Supreme Court justices to reach the right or just outcome? Does your method yield any important results that you think are unjust or wrong? Or does your method just happen to result invariably in happy endings? Inquiring minds want to know.

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Sunstein: 5/4/05, 09:20 AM
Thanks, Randy, for this illuminating response. I'll try to keep this one pretty short! Judge Ginsburg's ideas are elaborated at length in the 2002-2003 Cato Supreme Court Review. Judge Ginsburg identifies his views about the pre-Roosevelt Constitution with his commitment to originalism. Your own commitment to originalism is connected to your call for the Lost Constitution (which includes a return to some important pre-Roosevelt principles). I have used Judge Ginsburg's term in the past, but you (and others) have objected. Terminological disputes are boring, so I'm trying to find a term that you like! If you'd prefer originalism, so be it; that term is clearly connected, in key respects, to the pre-Roosevelt Constitution. You don't deny that, do you?

Let me quote you (so this one won't be so short after all): "So now it easier to see the difference between the "Constitution in Exile" and the 'Lost Constitution.' Whereas the former is allegedly all about a list of pre-1937 results, the latter is about restoring various provisions of the written text that have been gutted or weakened by judicial decisions. Here is only a partial list of important "lost" clauses: The Commerce Clause and the Necessary and Proper Clause (both expanded by the Supreme Court to the point they provide no limit on federal power), the Ninth Amendment and Privileges or Immunities Clause (both entirely eliminated by judicial opinion). In my book, I examine the original meaning of each of these widely-ignored portions of the text."

An illuminating clarification, so thanks for that. Would you be willing to use the term "Constitution in Exile" for the effort toward (let me quote you again) "restoring various provisions of the written text that have been gutted or weakened by judicial decisions"? If not, fine; let's call it the Lost Constitution, then. What matters is the project of restoration (suggesting the possibility that something, at least, has been exiled). Might we focus on that?

I don't think my own approach to constitutional law (outlined in my 1999 book, One Case At A Time), is our question here (though I'd be happy to discuss it later if you like). But you must know the answer to your own question: "Does your method yield any important results that you think are unjust or wrong?" Of course it does. As the founding document should be elaborated by courts: I don't think the Constitution requires government to provide a decent minimum for all; if people are starving, the Constitution doesn't require government to respond; I don't think the Constitution requires states to recognize same-sex marriages; I don't think the Constitution calls for Roe v. Wade; I think the one-person, one-vote principle was a big stretch; as a citizen, I was happy the day Bush v. Gore was decided (because it brought an end to a potentially chaotic situation), but I think the decision was wrong as a matter of law; I don't think Miranda was right; I don't think the Constitution protects commercial advertising; I don't think the Constitution protects the right to physician-assisted suicide; I don't think the Constitution forbids many unjust forms of discrimination against disabled people or old people. (Just for starters.)

But you haven't answer my questions. To repeat: Do you believe that the national government can discriminate on the basis of race and sex? Can the national government segregate the public schools in the District of Columbia?

Barnett: 5/4/05, 12:50 PM
Let me begin by noting where you and I now agree:

(1) We agree that this is not a debate about "the Constitution-in-Exile movement" or about a group that is pining to return to the constitutional law of 1930 or 1920. This was the scare picture drawn by Jeff Rosen's New York Times Magazine story that provoked this debate, but no actual scholar or judge fits this description. While Judge Ginsburg used the term once in his 1995 book review, nowhere does he repeat the term "Constitution-in-Exile" in the essay to which you linked.

(2) We agree that this is really a debate about "originalism" as a method of constitutional interpretation. There is no need to make up a new pejorative term, like "Constitution-in-Exile" or "Constitutional Fundamentalism"—terms no one uses—to describe this very real, though diverse, intellectual movement. Of course, since the 1980s, originalism has evolved from looking to the original intentions of the framers, to the original understanding of the ratifiers, to the original public meaning of the text as enacted. Most originalists are now in the last category, though some still linger in the other two. But "originalism" is a perfectly fair word to describe this cluster of theories of constitutional interpretation. So why then don't you and I stick with it?

(3) We agree that this is not a debate about a list of results that we may like or dislike. At issue here is how to interpret the written Constitution in a consistently principled manner. If one's theory of interpretation is indeed principled, it will not discard inconvenient passages of the text like the Commerce Clause, Necessary and Proper Clause, Ninth Amendment, Privileges or Immunities Clause, or even the Second Amendment or the Takings Clause. (As I asked yesterday, what does your theory say about these "lost" clauses?) A principled approach to the entire text will inevitably lead to results of which one disapproves, such as those on your list. You say your method would question the fundamental Warren Court principle of "one-man one vote." Would it be fair of me to urge readers to reject your method of interpretation solely because it leads to this "radical" result (and the others you list) or because it would reject an important line of precedent? I do not think so. Instead, we should closely consider the arguments on behalf of your method of interpretation and, if convinced they are compelling, reconsider the precedents. Principled constitutional methods are needed to reach results, not the other way around.

You are right to point out that the Supreme Court's decision in Bolling v. Sharpe is very difficult to reconcile with the text of the Constitution. For this reason, you know that among constitutional scholars of all stripes Bolling is one of the most controversial and difficult cases ever decided by the Court. I do not have a fully worked-out opinion on this complex issue, but suppose that a commitment to originalism entails the reversal of Bolling. Does this mean that Congress would restore "separate but equal" in the D.C. schools? The very suggestion is preposterous. Just as, by your method of interpretation, we would have to trust legislatures to deal with "starving" persons or establish one-man, one vote, so too may we trust Congress to keep the D.C. schools desegregated. Ironically, the very real practical effect of reversing Bolling would be to remove a major constitutional impediment to Congress enacting federal affirmative action programs.

It is also true that an originalist approach to the Commerce Clause would significantly constrain Congress's power—as I have urged the Court to do in the medical cannabis case of Ashcroft v. Raich. No serious originalist believes that such constraints should or would be imposed in a constitutional big bang. A gradual transition would allow democratic processes time to react—perhaps in the form of greater use of the spending power, perhaps in the form of constitutional amendments, or perhaps in the reinvorgoration of state government and interstate compacts—most likely, a combination of all these and more.

Originalism offers a principled method by which the written Constitution trumps the preferences of judges. Here is how the article you cite by Judge Ginsburg begins:

"I begin with an observation so fundamental, so straightforward and obvious, that it could be controversial only in the most elite law schools. That observation, to which I will devote considerable attention, is that ours is a written Constitution. When I say ours is a written constitution, I refer, of course, to the actual Constitution, the Constitution of the United States, the document reprinted in this little pamphlet in my hand. I do not refer to the legion of Supreme Court decisions interpreting the Constitution, applying it to particular factual situations, and in many cases providing us with an extended exegesis on its meaning. Those decisions are not the Constitution; as a practical matter, they are reasonably reliable guides to its application in future cases, but they are not the Constitution itself. To maintain otherwise is to ascribe to the Supreme Court a doctrine of infallibility it has never claimed for itself."

I have faith that the Constitution as written and amended really does provide a workable plan for the nation and a safety valve in the amendment process. Cass, do you share my faith in the entire written Constitution, not just selected parts?

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Sunstein: 5/5/05, 09:10 AM
Thanks Randy. I'll turn to substance shortly, but I guess we should spend a little more time on semantics.

We do agree on many things. Judge Ginsburg writes that judges were faithful to the real Constitution from the founding until the 1930s, when "the wheels began to come off." Three Supreme Court justices (Rehnquist, Scalia, Thomas) believe that much of post-New Deal constitutional law is wrongheaded, and Rehnquist has been quite successful in producing significant movement. (On Rehnquist, don't take my word for it; see the recent op-ed by John Yoo, whose core argument, approving of Chief Justice Rehnquist, is this: "When Rehnquist first joined the court, the justices were still hungover from the Warren court's revolutionary changes. It had expanded the rights of criminals so broadly as to make it difficult for police to do their jobs; it would briefly hold the death penalty unconstitutional; it had driven religion out of the public sphere; and it had removed almost all limits on the federal government's regulatory powers. It is telling to see how many of Rehnquist's views, considered outside the mainstream at the time by professors and commentators, the court has now adopted.")

Many people believe in recovering the Lost Constitution, in one or another form, but no one wants to return, precisely, to the Constitution of 1930. That's a red herring. We're now discussing originalism because that's what you would like to defend.

Here's a remark of yours that I especially like: "originalists maintain that better results will be reached overall if government officials—including judges—must stick to the original meaning rather than empowering them to trump that meaning with one that they prefer." I like this because it suggests, rightly, that any method of interpretation has to be chosen, not just asserted—and that the choice has a lot to do with "better results overall," not better results in particular. So it's not possible to escape choice and a concern for "better results overall"—though any method of interpretation, to be worth its salt, will discipline judges and hence to lead to some results that some of us won't like.

Of course the written Constitution should be taken as binding. But (and Judge Ginsburg, along with many others, misses this) it just doesn't follow that the original understanding of the written Constitution should be taken as binding.

It's perfectly coherent to say that judges should follow the written Constitution, but without being bound by the specific understandings of those who ratified it. To make progress, we need to ask why the written Constitution is binding, and then ask whether the arguments that make the original Constitution binding also make the ratifiers' understandings binding.

We should take the written Constitution to be binding because it's an excellent Constitution, because we're much better off with it, and because there would be a period of chaos, and possibly worse, if we decided not to be bound by it. But the same arguments don't justify being bound by the original understanding. More than two hundred years after the founding, it's clear that we'd be worse off, not better off, if courts were bound by the original understanding. To use your words, we wouldn't have "better results overall."

I'll give you one example. Maybe I misread you, but your answer makes it pretty clear that in your view, the national government can discriminate on the basis of race—and (it must follow) sex too. (Correct and forgive me if I'm wrong, but I bet you think that states can discriminate on the basis of sex as well.) So the Lost Constitution, or the Constitution in Exile, appears to permit the national government to treat racial minorities (including, say, people of Arab or Japanese descent) however it wants.

That's not trivial. There are lots of cases, within the last two decades, in which the federal government has been controlled by equality restrictions that many originalists can't justify.

But that's just the tip of the iceberg. If we go off on a historical quest, we'll find a lot of nasty surprises. In fact we'll be inviting forms of judicial activism that would put the Lochner Court, the Warren Court, and the Rehnquist Court to shame.

Of course I have faith in the entire written Constitution. But I understand our founding document, as we actually live it, to include over two centuries of practice and tradition, and not to be frozen in the specific understandings of those who ratified it. In the words of the Warren Court's great conservative, Justice Felix Frankfurter, "It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them." As you know by now, I'm not very enthusiastic about the Warren Court. Originalists are right to seek to discipline judicial discretion. But we can do that without binding ourselves to the specific understandings of those who lived hundreds of years ago.

Two more questions for you: Do you think that states can discriminate on the basis of sex? Do you think that independent agencies, such as the Securities and Exchange Commission, the Federal Trade Commission, and the National Labor Relations Board, are constitutional—or do you accept the view, pressed in recent years by many originalists, that they're invalid?

Barnett: 5/5/05, 12:34 PM
You are wrong about my views of sex discrimination by states, Cass, but no fair asking me new questions about particular constitutional issues until you answer my question from Tuesday (that I asked again yesterday): What you think about the Commerce Clause, the Necessary and Proper Clause, the Second & Ninth Amendments, and the Takings and Privileges or Immunities Clauses? Do all these clauses need to be "updated" to render them dead letters as the Supreme Court has largely done—until recently, that is, in a handful of decisions you might not like—or do all these clauses have bite in your theory? You say that you have faith in the entire Constitution, so does that mean that these clauses get put back in and enforced? If not, why not?

You must admit that a Constitution in which these clauses are enforced and not redacted by judicial fiat would differ from the "constitutional doctrine" given us by the Supreme Court. And you will agree, I think, that these clauses were not eliminated by a more "modern" reading of the constitutional text. The Court started excising them long before 1937. And surely you will agree that the meaning of the words and sentences in the Constitution have not really changed over the years—except through amendment, of course.

As you know, I and most originalists today advocate enforcing the original public meaning of these words, rather than the "specific understanding" (as you call it) of the framers or ratifiers as to how exactly their handiwork would be applied to future cases or controversies. By and large, originalists have listened to and learned from their critics and, as I noted yesterday, the theory of originalism has developed accordingly. Holding today's originalists to abandoned theories of twenty years ago is just not fair, but many critics of originalism persist in attacking old rejected theories and ignoring the current approach.

Besides, we have already agreed that this is not a debate about results in particular cases or positions on particular constitutional doctrines. It is a debate about how best to take a written Constitution seriously. In this regard, I think you want to have it both ways. On the one hand, you pledge your faith in the entire Constitution as a constraint on judges. On the other hand, you imply that judges should update the Constitution or "interpret" it out of the way when really fundamental issues are at stake. "One-man, one vote" is apparently not fundamental enough, but your last post implies that the maintenance of "independent agencies" outside the control of the President may be. (Perceptive readers may notice that, while I ask you about the meaning of clauses, you keep asking me about particular results and doctrines. But first comes the meaning of the text, then come doctrines and results!)

The problem here is that, in our polity, we disagree about what is really a matter fundamental enough to set aside or update the text of the Constitution. Some might disagree with you and believe that helping the starving is sufficiently fundamental. Others might believe that religious values are that fundamental. By your method of interpretation—discarding some outmoded provisions, updating others—how can you complain when your ideological opponents get control of the Presidency and the Senate and appoint justices who agree with their fundamental values and reject yours? Of course you can debate the values themselves, and I am all for that. But on your theory you cannot contend that these judges with different values are doing something that is constitutionally or judicially improper.

A commitment to a written Constitution in which its meaning must remain the same until it is properly changed is needed precisely to ameliorate just the kind of political struggle and turmoil that nonoriginalist approaches all but guarantee. The touchstone of originalism is a rule of law provided by the enacted text rather than a particular vision of what the Constitution should have said instead. I guess that is why many originalists were irked by Jeff Rosen's use of the label "Constitution in Exile" as a rhetorical move to redescribe originalism as a movement that aims at achieving a particular set of results—the constitutional doctrines that prevailed in 1920 or 1930, as you put it on Monday. There are constitutional theories that elevate preferred outcomes or doctrines above the constitutional text but, properly practiced, originalism isn't one of them.

Even if your willingness to alter the original constitutional scheme is limited to matters of structure and not particular results or doctrines—for example, by urging a judicial "minimalism" by which judges refuse to enforce provisions of the Constitution that you believe unduly impedes legislatures—this is still elevating your views of structure above that in the written Constitution.

So let me propose a test for you and other non-originalists to see what constraint, if any, the Constitution itself provides in your approach: Can you honestly trust your own methods of constitutional interpretation in the hands of judges with different fundamental values than yours? Or can a judge with different substantive or structural values than yours use your own methods to reach pretty much any result he or she wishes?

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Sunstein: 5/6/05, 08:59 AM
We've covered a lot of ground! Let me start with three general conclusions.

(1) There is a genuine Constitution in Exile movement, in the form of an effort to make radical revisions in constitutional understandings to recover some "lost" document. For two decades and more, a number of people, parsing text and mining history, have claimed that the Constitution requires a set of identifiable outcomes: It invalidates some or many affirmative action programs, campaign finance reforms, gun control laws, environmental laws, congressional grants of standing to ordinary citizens, and restrictions on commercial advertising. It contains no right of privacy. It invalidates independent agencies, forbids regulatory agencies from exercising broad discretionary power, and bans many post-New Deal exercises of congressional power. It might even throw civil rights laws into question.

If any of this sounds familiar, it should. The "lost" constitution, in the hands of many, maps directly onto the views of certain extreme elements of the Republican party. (And Randy, I'm not talking about your views in particular; my focus in much more general.)

Of course those who believe in a "lost" Constitution don't agree on what, exactly, has been lost, and believers may accept only a subset of the views I've described. But make no mistake: This is a movement, often marching under the "originalist" banner, and it's an influential one, with three Supreme Court justices (and sometimes more) showing sympathy for it.

It has been both alarming and comical to see the recent fury and outrage of many people who believe in a lost Constitution but who attack Jeff Rosen for drawing attention to their movement. Here is much of their response: (1) the words "Constitution in Exile" aren't their own (though the term wasn't invented by Jeff Rosen!) and (2) they reject important parts of the constitutional law in 1932 and their own restoration project overlaps with, but doesn't come close to duplicating, the constitutional law of that period.

Neither of these points is even slightly responsive.

(2) Right-wing judicial activism is real. Let's define judicial activism neutrally, as invalidation of government action. The Rehnquist Court has struck down (at last count) about three dozen enactments of Congress—a record of judicial activism that is without parallel in the nation's history. Of course sheer numbers don't tell all of the story, but they do tell some of it. Chief Justice Rehnquist and Justices Scalia and Thomas have clearly indicated that they would like to strike down a lot more. To their credit, they sometimes have the original understanding on their side, but their own Lost Constitution doesn't always have strong historical roots.

Examples: Why do the Court's self-proclaimed originalists vote to strike down affirmative action programs and grants of standing to citizens without saying so much as a word about history? When was the last time the Supreme Court's defenders of aggressive protection of property rights spent serious time on the history of the takings clause (on which more in a moment)?

(3) Originalism isn't conservative; it's radical. Originalists come in many stripes. But every self-respecting originalist will agree, publicly or at least privately, than the Constitution in Exile, or the Lost Constitution, is radically different from our own.

We've seen some examples. In principle, originalism would dismantle the constitutional protection against race and sex discrimination at the national level. Some prominent originalists have argued that the independent agencies, including the Federal Reserve and the Securities and Exchange Commission, are in big trouble. Others have said that the Constitution bans agencies from exercising a lot of discretion, as does the Federal Communications Commission and the Environmental Protection Agency.

Justice Scalia describes himself as a faint-hearted originalist, because he respects precedent. Good for him! Justice Scalia is occasionally caught between his genuine conservatism (his Burkeanism) and the radicalism that originalism would produce.

Learned Hand, a great believer in judicial restraint, said that "the spirit of liberty is that spirit which is not too sure that it is right." Burkeans, and true conservatives, respect liberty's spirit. Many originalists don't.

Three smaller points by way of conclusion:

(1) Randy, I disagree with your interpretation of all of the clauses you invoke. In no area do I want radical changes in existing doctrine, based on one non-historian's very contentious readings of history. I think you're entirely wrong on the Ninth Amendment. On the Takings Clause, the history seems to go hard against you; for instance, John F. Hart argued in the Northwestern Law Review that regulatory takings are fully consistent with the takings clause.

Remarkable but true: Many originalists who want more aggressive protection of property say nothing—not a word—about the extensive historical work that draws their desires into question.

Of course I don't want any clause to be a dead letter. I would certainly leave some room for some judicial invalidations under the clauses you mention, including the Commerce Clause and the Second Amendment. Like the Court, I'd protect property rights more than the original understanding appears to warrant.

(2) Do you really believe that originalism eliminates judges' value judgments from constitutional interpretation? I can't imagine that you do.

I once asked a federal judge, a prominent originalist, to think of an area in which the original understanding greatly departs from his own political views. He couldn't think of any. Justice Black, a real liberal, was an originalist, focused on history, which he often used in defense of liberal results; do you think he was always right? Some originalists think that your views are historically preposterous; do you believe that political values are irrelevant to the disagreements? Of course you try to get the history right, and maybe you do; but may I point out that your own libertarian views often map fairly closely onto your interpretation of disputed constitutional clauses? (I'll spare you, and readers, the details.)

(3) Our topic is the Constitution in Exile, not my own views. But you keep misdescribing my preferred approach, judicial minimalism, which has been followed by people with positions very different from my own, including Justices Frankfurter and O'Connor. There's definite discipline in the minimalist method. (My minimalism includes a presumption in favor of judicial respect for democratic prerogatives.) And why do you accuse me of discarding some clauses and updating others? That formulation makes sense only if we accept the disputed claim that the Constitution always means what it originally meant. Why do you accuse me of thinking that some matters are "fundamental enough to set aside or update the text of the Constitution"? I don't want to discard or to update any clauses of the Constitution.

A final word: Those who believe that the Constitution is "lost," or in exile, often read history in a way that fits with their own political views. (Of course they're operating in good faith—which, by the way, they regularly accuse others of lacking.) Even if there's no misreading, they are seeking radical changes in our constitutional system.

No one should doubt that believers in a Lost or Exiled Constitution are honorable. Many of their concerns are legitimate. But their movement, now playing a large role on the federal courts, would threaten both our rights and our institutions. The American public, not just judges and lawyers, should know the stakes.

Barnett: 5/6/05, 12:44 PM
Cass, thank you for the passion and clarity that your most recent remarks have brought to our debate. As you say, we have covered a lot of ground, and for the most part, I think we've succeeded in bringing more light than heat to the vitally important issues we've discussed. Let me step back a moment before addressing directly the most recent points you've made.

Why has the phrase, "Constitution in Exile"—plucked from the obscurity of a book review by Doug Ginsburg—suddenly become the topic of a New York Times Magazine cover story and the label for what you today re-assert "is a genuine Constitution in Exile movement"? The real issue lying behind this rhetoric is the likelihood that the current President will appoint two or more Justices to the Supreme Court. Should the President choose to nominate a distinguished originalist, such as your former colleague and now-Judge Michael McConnell, we will witness the most extraordinary public debate about constitutional theory since the confirmation hearings of Robert Bork. At the center of that discussion will be originalism.

Our conversation has demonstrated that the effect of talking about a "Constitution in Exile" is to obscure rather than illuminate the terms of this debate. I fear that this rhetorical shift aims to evade genuine intellectual and political discourse about the merits of originalist jurisprudence by raising a red herring about a fictitious and ill-defined movement or conspiracy to restore the constitutional doctrines of 1930 or 1920. Our interchange this week has been productive, in part, because it has refocused the discussion on the real choice before us: Should judges follow the text of the written Constitution in light of evidence about its original public meaning or should they ignore that meaning to translate their fundamental values or beliefs about how government should be arranged into constitutional law?

Cass, you and I agree on much, but we disagree about the answer to this question. You believe that the importance of reaching certain results—you listed them today—justifies the judicial nullification or updating of whole provisions of the Constitution. (If "updating" does not fairly describe a nonoriginalist approach, then I don't know what does.) I believe that judges who stick to the original meaning should be nominated by the President and confirmed by the Senate.

Because the charges you make today will surely be echoed by opponents of the President's nominees, I am grateful for the opportunity to discuss them now:

(1) Originalism is "Activist." You write: "Let's define judicial activism neutrally, as invalidation of government action." If that were an accurate definition of this generally vacuous label, then anyone who believes in judicial review is a judicial activist—in other words everyone who accepts Marbury v. Madison. It is hardly "activist" to nullify an unconstitutional law—as John Marshall argued so eloquently more than two hundred years ago. If one must use the label, it is better defined as judges who discard or ignore the text of the written Constitution, whether to uphold or nullify government action.

(2) Originalism Isn't "Conservative." At the very least, we can agree to avoid double standards. Conservatives are no more committed to upholding the prior erroneous decisions of progressive judges than progressives are committed to upholding the decisions of the Rehnquist Court with which they disagree. I must admit that I find it hard to take seriously the charge that originalist judges aren't conservative enough.

(3) Originalists are Insincere. For the sake of clarity, I want to emphasize that I did not take you to imply that originalism is only employed when it leads to favored results and ignored when it does not. You didn't offer any evidence for what would have been a very serious charge—essentially an unsupported assertion that some of our most respected judges are performing their solemn duties in bad faith. I am sure we can agree that, like everyone else, originalists are human beings, which means that their beliefs and values will influence their attempt to be faithful to the text of the Constitution. But the main point of originalism is to provide an external and objective standard based on the text of the Constitution—a standard to which originalist judges can and should be held. Moreover, there are obvious reasons why even an originalist justice may not follow original meaning in a particular case. For one thing, some originalists believe that precedent has a role to play. And individual justices do not decide cases by themselves; the court does. The very few members of the current court who are originalists cast votes and write opinions in the context of a collegial body in which nonoriginalist reasoning plays the dominant role—whether the originalists like it or not.

(4) Originalism is "Radical." "Radical" is yet another buzzword devoid of objective meaning. Originalists make no secret of the fact that a renewed commitment to the written Constitution entails changes. Originalism seeks to restore to constitutional law, those parts of the text that have been lost, including the Commerce Clause, the Necessary and Proper Clause, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. These clauses have been largely ignored by the courts. To test this claim, just ask any practicing lawyer if she can make a successful argument today based on any of them, except possibly (and only very recently) the Commerce Clause.

I firmly believe that the Constitution of the United States is thoroughly in the mainstream of American politics and culture—not just some of the Constitution, but the whole thing. Is it radical to urge that states, not the federal government, should exercise their police power to decide on whether cannabis should be available to sick people, provided its cultivation and possession is wholly intrastate? Are you being "radical" (or "activist" for that matter) when you say that "I would certainly leave some room for some judicial invalidations under the clauses you mention, including the Commerce Clause and the Second Amendment." Until Lopez and Morrison, your first proposal was unthinkable (except to an originalist) and using the Second Amendment in this way would be something quite new today. Cass, do you honestly believe that use of the pejorative label "radical" improves rather than clouds our understanding of the real issues that lie behind these questions?

One more thing. I want to emphasize a point that I made on Wednesday—and which you have never contested: no originalist proposes a wholesale "big bang" shift of doctrine. That is not how matters come before the court, where the issues are decided "one case at a time." As the entire text of the Constitution gradually comes to be enforced, there are many adjustments that can and will be made by other governmental actors, from constitutional amendments, to the exercise of the spending power, to the implementation of interstate compacts. As you know, my own view is that precedent must eventually give way when the decided cases are demonstrably inconsistent with the Constitutional text. However, many originalists, Justice Scalia is among them, would go even slower—tempering their originalism with a commitment to precedent and deference to the settled historical practice of the political branches—but these are matters on which reasonable judges and scholars can and will disagree.

Over the course of this week, Legal Affairs readers have been provided a preview of a great debate that lies ahead. As my final contribution to our discussion, let me express my hopes and aspirations for that debate. I hope that the political process upon which we rely to select Supreme Court Justices will not be thwarted by name calling, conspiracy mongering, or false claims about bad motives on either side. I hope that judicial nominees will not be presented with a laundry list of results intended to serve as a litmus test for ideological acceptability. I hope they will be asked instead about their judicial philosophy and their commitment to the rule of law. I hope that those who participate in this great debate will frame their arguments in language that clarifies the issues rather than obscures them. And I most fervently hope that the debate will not be conducted in a topsy-turvy newspeak that charges originalists with being insufficiently conservative and equates adhering to the rule of law supplied by the Constitution of the United States with activism or radicalism!

I am grateful to Legal Affairs for inviting me to participate in this debate. And I want to express my thanks to you Cass for the integrity, intelligence, conviction, and courtesy you have shown in our illuminating colloquy.

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