With COVID-related spending exacerbating state finances, we may be in for a major development of Eleventh Amendment doctrine.
In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is that the Constitution and its Amendments have been battled-tested through a rigorous adoption process that at every point along the way required some level of supermajority support—a requirement that makes it more likely that only sounder provisions are likely to work their way into the fabric of American Constitutional law.
The Exclusion of Women and Blacks
The claim, as they develop it, runs into difficulty because some of the principles that worked their way into the constitutional were less than ideal. Toward the end of their paper they hone in on two exceptions to the basic rule, namely “The Exclusion of Blacks and Women” from their rightful place in the Constitutional order. This pairing is odd in the extreme because the Constitution says nothing about the status of women at all. The key text dealing with voting in the House of Representatives, in Article I, Section 2, Clause 1, takes no stand on suffrage, but contents itself with a devolution program that provisions that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (There was no parallel issue for elections to the Senate or the Presidency, which were done by the state legislatures and the Electoral College respectively.) But there are, for example, no independent federal prohibitions on the election or appointment of women to any position created under the Constitution, including the President of the United States. To be sure, the Constitution did not require the participation of women in the electoral process until the adoption of the Nineteenth Amendment in 1919.
The constitutional history on the question of race is a different matter altogether for that is an issue on which the Constitution has a lot to say. But in their effort to link originalism to the good Constitution, McGinnis and Rappaport are not faithful to the principles of interpretation that lie between the originalist project. No system of interpretation, originalist or otherwise, is intended to purify the Constitution of any structural errors in judgment that were incorporated into the body of the text. Interpretation is not covert for legislation. Quite the opposite, the only thing that a sensible theory can do is to be sure that the implementation of any given provision is consistent with the dominant text that is subject to interpretation.
Indeed one test of a sound theory of interpretation is that it is as faithful in its implementation of bad and immoral texts as it is of good and enlightened ones. And just that principle is showed clearly in looking at one of the most odious texts in the Constitution, dealing with the question of fugitive slaves, without ever deigning using the word “slave:”
Art. IV. Sec. 2, Cl. 3 No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
The Clause is inserted into the Constitution right after the Extradition Clause that in parallel language states:
Art. V, sec. 2, cl. 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
Both of these clauses are exceedingly well drafted and leave no room for the imagination. A consistent originalist will apply the same technique to reading them both, and see in them categorical obligations to return both slaves and criminals to their owners in the one case and the proper state authorities on the other. Put in a different way, the Constitution explicitly treats slaves, who have done no wrong, and criminals, who may have done serious wrongs, in exactly the same fashion. Odious, but clear.
Accordingly, there is in my view no interpretive dodge that allows for Courts to soften the constitutional obligation for fugitive slaves while keeping it robust and in tact for fugitive criminals. Nor in my view is it possible to raise any valid constitutional objection to the Fugitive Slave Act of 1793, which created a federal system for the recapture of slaves, and, by invoking the Supremacy Clause, negated all state laws that purported to soften the effect the Constitutional provision by giving sanctuary to escaped slaves. Nor when that onerous regime started to unravel, was there any constitutional objection to the passage of the still harsher regime of the Fugitive Slave Act of 1850, passed as part of the Compromise of 1850 in an effort to keep the Union together.
The Limits and Uses of Interpretive Theory
The question is whether this sordid history should embarrass the defenders of any form of constitutional originalism, and the answer to that question is no. The task of originalism is one of interpretation. The point of interpretation is to develop norms that allow for the effective implementation of a scheme so as to prevent slippage between the general plan of the party who enacted the law and the application of that law by other officials, be they members of the Executive Branch or the Judiciary. That problem is raised to its highest level in constitutional matters, but the problem of fidelity to law exists in the interpretation of every document, whether it is found in a constitution, statute, regulation or private contract.
The public official that chooses not to enforce these laws while they are in effect faces a serious crisis of conscience in dealing with the Fugitive Slave laws, and for that reason may well decide to resign his office rather than enforce a law that he thinks, and correctly thinks, violates the core position of any system of natural law that affords to all persons free and equal status in the state of nature, which slavery profoundly denies. Yet no theory of interpretation can cure these fundamental defects in world view. The originalist theory of interpretation on constitutional matters has to live in the bed that the Framers have forced them to lie until those laws are changed.
In an odd way, the predicament that any judge faced in the application of odious constitutional provisions like the Fugitive Slave Clause is a tribute to the power of the originalist modes of interpretation. It is all too fashionable today to insist that any particular constitutional text can be endowed with whatever meaning we think that serves some important social function, including the creation of a good society, or, to use the words of McGinnis and Rappaport, to show that “originalism” generates constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories.”
The Gun Control Example
I think that this is wishful thinking. I am at a complete loss to understand why that particular claim should be regarded as true in the absence of firm linkage to some constitutional text. What makes it so difficult to evaluate their claim, moreover, is that McGinnis and Rappaport do not offer in their article any particular case that proves the general theory. They do, however, refer at the outset to Justice Scalia’s originalist arguments in Heller v. District of Columbia (2008), which struck down a District of Columbia gun control law that forbade the possession of a firearm in the home for use for self-defensive purposes. The text of the Second Amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The initial phrase which refers to the security of “a free State” is correctly understood as referring to the states of the United States, and not to some abstract state anywhere on the globe that is protected by some universal provision of justice. The Framers were well aware of the role that sovereignty played in domestic and international affairs, and thus adopted an Amendment that was intended to prevent the federal government from encroaching on the the power of the states over their own people, and thus had no application to the District of Columbia.
Suppose, however, that all this is wrong, and that Justice Scalia got it right when he struck down the statute under the Second Amendment. How do we know that this leads to good social consequences in light of the fierce public debate over the soundness of gun control laws. The core of that debate is over means/ends relationships. Neither side to the debate thinks that murder or mayhem are social goods. The sole question is whether the gun control laws advance the end of a safer society by removing guns from general circulation, or whether they frustrate that end by taking guns out of the hands of law-abiding individuals, giving criminals a wider berth for action. That empirical debate cannot be resolved by a correct rendition of the Second Amendment.
Indeed in most cases where the Constitution authorizes various powers of regulation, it remains an open question of whether these powers are exercised for good purposes or for ill. Within this framework the traditional arguments over originalism continue to hold sway. Does the Constitution create a regime of limited federal powers that reserve extensive areas of autonomy to the states? And, with the passage of the Fourteenth Amendment, does the Federal government now have greater power to ensure that the states do not encroach on either the “privileges or immunities” of the citizens of those states protected under the Fourteenth Amendment. There are many difficult issues of interpretation that must be resolved to answer these questions. I offer my own qualified version of originalism in my new book The Classical Liberal Constitution. But for the moment, it seems that any appeal to supermajority voting in the manner of McGinnis and Rappaport is not likely to resolve those difficulties.