American Legal History
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.

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) (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

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.

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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r4 - 22 Nov 2016 - 19:58:28 - JeffreyGlass
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