Michael Rappaport on how Hayek's use of the Ninth and Fourteenth Amendments supports traditional rights - and originalism.
Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text. Larry Solum has already asked her five probing questions about her understanding of originalism.
Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document. To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do. Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man. She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”
The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.
First, a team of lawyers was in fact responsible for perfecting the language of the Constitution. The Convention appointed a Committee on Detail to mold its resolutions into a coherent document. Four of the five members of this committee were lawyers, James Wilson, Oliver Ellsworth, John Rutledge, and Edmund Randolph. And not just any lawyers, but the most distinguished lawyers of a body that was already made up largely of lawyers. The first three were appointed to the Supreme Court, the latter two as Chief Justice. The fourth became the first Attorney General of the United States. It is hardly unusual in any complex undertaking for those less knowledgeable about the law to provide the general contours of a plan and yet leave the technical drafting of a legal document to those more knowledgeable about law. And it was the work of the Committee on Detail that formed the basis of the Constitution’s language that the Philadelphia Convention approved and the state conventions later ratified.
Bilder also claims that “Creating a workable organization of government was the task of that summer, not writing an intricate document.” But this statement wholly fails to appreciate the complexity of the founding enterprise. The Framers wanted to give more power to the government to make it “workable” but also needed to avoid the tyranny that they believed greater power threatened. That dual objective required checks and balances and the parsing out of powers—exactly the kind of intricacies that law helps make more precise to guide officials in carrying them out.
Bilder also notes that Madison decided against interweaving the Bill of Rights into the Constitution in 1791. But how does this make the Constitution any less a legal document or suggest that its meaning is less fixed than it was in 1789? There were legal rules to help understand the effect of the revisions to prior law, and the Bill of Rights in fact includes a legal interpretive rule in the Ninth Amendment to make sure important aspects of the relation between these Amendments and the Constitution of 1789 are not misunderstood.
Thus, not only may Bilder misunderstand originalist theory, but her historical arguments fail to undermine the legal nature of the Constitution’s language.