Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real difference in perspective.

Epstein seems to understand us to say that any supermajoritarian process is likely to lead to good results. He thus begins his essay by observing that the existence of the Fugitive Slave Clause is a refutation of our position. But he completely misunderstands our argument. It was the exclusion of African Americans from the supermajoritarian process—a problem which we highlight in our original essay– that led to this evil provision. This provision is not a failure of a proper supermajoritarian process, but the natural result of a patent defect in the process. Indeed, it is our supermajoritarian theory that explains why the exclusion of African Americans from constitution making is a serious problem for originalism

Unlike many other originalists, we have an analysis that shows why we should be originalists today despite the original sin of the American republic. Whatever the problems for the Constitution at the time of the Fugitive Slave Clause, this supermajoritarian process failure was followed by supermajoritarian correction in the Thirteenth, Fourteenth, and Fifteenth Amendments and thus following the Constitution as written no longer has the obvious problems that came from an improper process.

While it does not change the immorality of the Fugitive Slave Clause, Epstein is also wrong to assume that the Fugitive Slave Act was constitutional. It is far from clear that the Constitution compounded the evil of slavery by authorizing Congress to pass that Act. There was no enumerated power to do so. While the Necessary and Proper Clause provides authority to the Congress to bring into execution the powers of the federal government, the Fugitive Slave Clause provides no such powers, being focused on state laws. Indeed, the Full Faith and Credit Clause, which also imposes obligations on the states in Article IV, makes that reading clear, because it provides special authority to Congress to provide regulations to facilitate state cooperation.

We are also inclined to disagree with Epstein’s pronouncements on the meaning of the Second Amendment. First, we do not understand the word “State” in the Second Amendment to refer to a particular state of the union. When the Constitution is referring to the states, it tends to modify the term by “each” or “several” (or where negative, “no”). This reference is likely to a polity and the generality of the reference reflects the generality of the political truth announced in the preamble. Second, even if Epstein were right, the preamble cannot narrow the meaning of the operative clause. The Bills of Rights restates core rights of Englishmen and that right, like the other rights in the Bill of Rights, applied against the federal government, no matter what enumerated power it chose to exercise.

Epstein seems to suggest that we want to “purify” the Constitution. But this claim is also mistaken. Our essay and our book are consequentialist arguments for enforcing the original meaning of the Constitution today, not a purified meaning. Indeed, the original methods approach provides a thicker meaning of the Constitution than words that are interpreted without regard to the legal interpretive methods of the Framing. Original methods originalism makes the ongoing purification projects of ideologues of the right and left, some of whom claim to be originalists, more difficult.

It may be that Epstein believes that our claim about the desirability of the Constitution is not well taken because he wants us to examine the original meaning of specific provisions and show that those provisions lead to desirable results. Such an enterprise would be an entirely different one than we undertake in the book.

We would welcome a book that pursued this inquiry, but it would be an extremely difficult and highly contentious enterprise at present. First, it would require an inquiry into the original meaning of all of the provisions of the Constitution, a task for which there has been progress in the last two decades, but which still remains largely unfinished. Second, it would require an examination of the welfare effects of these provisions. Third, under our view of the desirability of constitutional provisions, it would also require an assessment of whether those provisions accord with the sentiments of the people.

Instead, our book makes an argument based on the supermajoritarian procedure by which constitutional provisions are enacted. There is a strong theoretical argument that this procedure likely generates desirable provisions and there is no better mechanism for constitution making. As we note, a supermajoritarian process facilitates consensus, deliberation, and a veil of ignorance that helps citizens to look beyond their parochial interests. There is also a strong historical argument that some of the most prized aspects of the US Constitution — including the Bill of Rights and constitutional federalism — were the direct result of the supermajoritarian procedure for enacting it.

While we do not examine the specific provisions of the Constitution in detail, we do assert and believe that the original meaning of the Constitution is largely classically liberal. The basic structural provisions of the separation of powers and federalism are designed to limit government. Moreover, the Bill of Rights and the 14th Amendment are concerned with the protection of individual rights of the negative sort that are defended by classical liberals. We believe that such classical liberalism promotes the welfare of the people and that various works — some of which have been written by Epstein — make that case. And we predict that should an evaluation of the overall welfare effects of the original meaning of the Constitution as amended be undertaken, it would be substantially positive.

Thus, the classical liberal nature of the Constitution helps to support our argument about the desirability of the Constitution, but that is not the main aspect of our argument. Instead, the main aspect is the crucial role played by the enactment and amendment provisions of the Constitution in generating a desirable constitution.