Yesterday, Mike Ramsey discussed
Stanley Fish’s review of Akhil Amar’s new book America’s Unwritten
Constitution. I was planning to write something about Fish’s
discussion, but Ramsey beat me to the punch and said what I was going to
say.
But I do want to add one point. Mike makes the following two part claim:
Text-based
originalism does insist on two core points that may well be in tension
with Amar's project: (1) the background assumptions that give meaning to
the text are those of the time in which the text was written, not some
other time; and (2) the project of interpretation is to use those
background assumptions to give meaning to particular language in the
text, not to leverage the background assumptions into rules that the
text does not contain. Neither of these, though, entails "not going
outside the text." They do make text-based originalism "clause bound"
in a sense, but not in the sense Professor Fish seems to mean.
Not
only do I think that Mike is correct here, but I think this is
something that virtually all original public meaning originalists (or,
as Mike puts it, text-based originalists) would agree to. I often find
myself disagreeing with originalists on all sorts of issues. But there
are some issues where originalists agree and this tells us something
about the core of originalism. On the point that Professors Fish and
Amar raise – bringing in material from outside the text – I believe that
there is this consensus.
Originalists do disagree about other
closely related matters, but that disagreement does not undermine this
consensus. For example, Jack Balkin believes
that the Constitution’s original meaning is very limited, even
minimal. When the Constitution is applied, he believes that this
minimal meaning is supplemented by constructions of the language
supplied by social movements, who convince judges and other relevant
actors how the Constitution should be read. In contrast, I believe
that the original meaning is much thicker than Jack thinks it is and
therefore regard many of the constructions that Jack regard as
permissible as impermissible departures from the original meaning.
Despite this disagreement, I still believe, based on my reading of
Jack’s work, that Jack would agree with the two points above: Jack would
agree that one must go outside the text to determine the Constitution’s
minimal meaning and that one should not claim that background
assumptions are part of that minimal original meaning when they are not
fairly read as such.
I have purchased Akhil’s book, but have not
started reading it yet. One of my principal concerns will be to
evaluate to what extent his arguments for the Unwritten Constitution
respect this important consensus.
Posted at 7:17 AM