At Dorf on Law, Michael Dorf: Why Is the Constitution Authoritative? (He does not pose this question specifically to originalists, but it's interesting to think about what the originalist answer(s) would be).
He first says that the Constitution cannot be authoritative simply because is says it is (in Article VI). That seems right. Next:
Many judges, lawyers, scholars, and laypeople would say that the familiar Constitution is authoritative because it was lawfully ratified by the states in 1789. Yet that answer seems inadequate too. For one thing, the Constitution was not lawfully ratified, at least not under the pre-existing law under the Articles of Confederation, which required unanimity for any amendments; however, Article VII of the Constitution made it effective among the ratifying states upon ratification by nine rather than all thirteen states. True, all thirteen eventually ratified, but Rhode Island did not do so until May 1790, eight months after the new government got going in violation of the Articles of Confederation.
I think in general this is the answer many originalists would give. Except that I don't think they would think it turns on whether the Constitution was "lawfully" adopted pursuant to the Articles. The Constitution was treated by the Founding generation as having been duly ratified and having become binding. I think originalists would see that as key, and would not see the questionable legality under the Articles as undermining it.
Professor Dorf continues:
More fundamentally, even setting aside the original Constitution’s dubious legality, how can its ratification 230 years ago by representatives of an electorate that excluded women and enslaved African Americans render it a legitimate authority for our diverse polity of today? This question reflects the so-called dead hand problem. The Constitution imposes all sorts of limits on what democratically elected governments can do. It even limits the extent to which the US functions as a democracy or a representative republic, by, for example, over-representing the small states in the Senate and the Electoral College. Seen from this perspective, ratification 23 decades ago hardly grounds the Constitution in democratic principles; it undermines such principles.
Here I'm not sure of the consensus originalist response. Some people might say that it can be amended, and so to the extent it is not amended, it remains authoritative. Professor Dorf objects to this response by saying it is too hard to amend. I think I would say that it can be amended or abandoned (from an originalist perspective some parts of it have been abandoned), so this is not as strong an objection. The people choose to continue to regard the Constitution as authoritative.
This is sort of like his answer:
Perhaps … [the] Constitution … is binding because the relevant government authorities treat it as binding. This answer, which follows the approach laid out by the late British legal scholar H.L.A. Hart, treats the Constitution’s legality as a kind of social fact.
The main problem with accepting Hart’s view is that it strips the Constitution’s legality of any special democratic legitimacy. After all, it is easy to imagine how government authorities might treat a very different sort of document or institution as binding. Indeed, we need not use our imagination. Applying the Hart criterion, we can say that it is a social fact that the government of North Korea is a dictatorship under Kim Jong-un. … Are we really prepared to say that the US Constitution’s legality, like the Kim regime’s rule, rests on no more than brute force?
But no, I don't think the Constitution is binding because the authorities say it is authoritative — surely the right view is that what counts is that the people, not the authorities, treat it as authoritative.
Still , I'm not sure this is fully satisfactory to originalists, because one might conclude that the people don't treat the originalist Constitution (or at least, all of the originalist Constitution) as authoritative. (Will Baude and Steve Sachs argue to the contrary but not all originalists are persuaded.)
In conclusion:
Ultimately, there may be no fully satisfactory account of the Constitution’s authority. At most we may be able to explain the binding force of the Constitution by combining a brute social fact – that authorities and most ordinary citizens accept the Constitution’s authority – and some reasonably attractive features of the Constitution: Although hardly perfect, our familiar Constitution establishes a roughly representative system of government and, as construed by the courts, it generally protects important civil and political rights.
Can originalists do better?
Posted at 6:09 AM