Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
Legal historian Mary Sarah Bilder’s op-ed in the Boston Globe means to level originalism. Her effort has produced responses from Lawrence Solum and from John McGinnis and Mike Rappaport on this site. The criticisms sum to the notion that Bilder is shooting scattershot rounds at a defined scholarly target.
Bilder’s argument is that the members of the Constitutional Convention did not have “the luxury of even imagining that each and every word possessed an invariable, sacred meaning.” Who said they did? Surely not Publius in Federalist 37, where he noted the indeterminacy of language and observation in any number of human pursuits, constitutionalism and the law notwithstanding. I’ll return to Publius’ observations in this regard, because they point a way out of the morass that we are currently in between Bilder and most of originalist scholarship. Much of Bilder’s piece builds on her book Madison’s Hand, whose essential argument is that Madison’s Notes on the Constitutional Convention were revised in the 1790s by him in response to partisan pressures faced by his Democratic-Republican Party from Hamilton’s Federalist Party and its “monarchical” principles. Who knew? Apparently, scholars for well over a hundred years. When can we trust Madison to give us the straight scoop on the Convention of 1787, and when is he just being a partisan? Bilder’s book taints his constitutional observations and history as raw political posturing while proposing no real elements of Madison’s hand that we can trust. The Founding really can’t be understood on its own terms. If its politics all the way down, then we-the-living have no choice but to adopt our own politics of the moment. Progress and all that.
As Gordon Lloyd points out in a critical review of the book for Law and Liberty, Madison ‘s Notes were under revision by the Montpelier Sage, and others he entrusted with it, almost to his death in 1836, not only the 1790s, the period Bilder is preoccupied with. Does that mean Madison cannot be trusted to bring us to those constitutional debates of the Founding? Lloyd asks: “Can we grasp the drama of the arguments that took place during those four months in Philadelphia about federalism and the separation of powers—and can we sense their enduring importance rather than get bogged down in Bilder’s particularity of the moment?”
Yet Bilder also makes a few observations that should lead us to think more deeply than the framework of original-versus-living-constitution permits. She notes that “Madison’s revisions show that words used that summer gradually and subtly came to take on more precise meanings after the convention.” And that “From the moment the Constitution became visible in September 1787, its meaning was contested.” Here’s where things get interesting. If Bilder wants to replace Madison’s invisible hand with her heavy hand, maybe it’s the very heavy hand(s) of Publius that we should look to for the best understanding. And here what we find is a certain type of authority that is not so much the fixity of meaning, but the possibility of an ongoing quest of self-government, one that cannot be perfected nor anchored in certainty. Instead, we are left with the manners and morals of the people, which may or may not reflect what I regard as the crucial philosophical suppositions of the Constitution: skepticism of power, limited government, the rule of law, and a desire of citizens to bring order to their liberty as self-governing men and women, who give ongoing or recurring consent to the laws that are passed. If we lose these habits and commitments then our Constitution’s meaning changes regardless and will reflect the new ways of thinking and living that we as a self-governing people forge. No theory of empowered, engaged, or activist Justices will change that. The hope, however, must rest with the people and with the machinery of deliberation and delay that our Constitution has put in place.
What should receive more discussion is the notion, expressed in The Federalist essays 37, 78, and 82, of “Liquidating” the meaning of the provisions of the Constitution. Publius means by that that it is necessary to make clear terms that are apt to be contested. And what isn’t contested in the heat of conflict? Specifically the discussion in Federalist 37 is most apt for our current distressing situation. It is there that Publius discourses on the difficulty of ascertaining the boundary between federal and state powers. He states,
“Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all.”
Elsewhere in that essay, Publius notes, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussion.”
In Federalist 82, Publius observes that “The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety.” And this consideration only multiplies, Publius says, under a system of “a number of distinct sovereignties.” Time, then, “only can mature and perfect so compound a system, liquidate the meaning of all the parts, and adjust them to each other.” How then does one engage in the process of liquidation?
For that we repair to the republican politics our Constitution invites its citizens to engage in. Even the problem of faction in Federalist 10 is subordinate to the principles of republicanism and must be addressed without betraying republicanism. The Constitution rests on the people, or as Federalist 39 says, “If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” We are treated in this same essay to the most sustained discussion on the foundation of the Constitution, the source of its powers, their extent, and upon whom they operate.
Inquiring minds can disagree with Publius’ reasoning on all of the aforesaid elements of the Constitution. Is the Constitution the mixture of state and national elements that were noted by Publius in Federalist 39, or is it more national? What should not be in doubt, I think, is that Publius argues that one of the most important principles of our Constitution (federalism) is difficult to define and ring-fence. Its meaning will have to be worked out through a process of politics, decisions, settlements. This will be the appeal to the “common constituents” of Federalist 46, or the citizens of the states to whom decisions on the different allocations of power between the federal and state governments will be referred for ongoing consent. And this process doesn’t really end.
Surely this is not just a process to be undertaken by the federal judiciary in a manner that suffocates the opportunity for self-government. If the problem is that of making terms clear, then the pronouncements of the judiciary might give a definition or meaning, but this alone couldn’t “liquidate” the Constitution’s terms and provisions. Per Federalist 39, at one level the Court is a tribunal to prevent an appeal to the sword or dissolution of the compact; yet we’re told in Federalist 78 that the Court should abstain from imposing its will on the elected branches. The Court must understand that its powers are derived from the people and its judgments are to uphold the fundamental law of the Constitution and not be a substitute for the Constitution. So the judiciary must take seriously the notion that it is an “auxiliary precaution,” one that intervenes when the laws are at an “irreconcilable variance” from the Constitution. And while we let the Court’s judgments percolate, we should not regard the Court’s decisions as final, as abstract doctrines commanding assent.
What we must consider then is the case for a different originalism. As Gordon Lloyd observes in an essay entitled “Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835″:
[T]he meaning of the Framers’s understanding is to be discovered in the decisions of the State Ratifying conventions, the records of the Federal Convention and the First Congress, and such contemporaneous expositions as the Federalist. Moreover, the Constitution requires a “liquidation of meaning” over time; put differently, Madisonian originalism requires both “initial consent” and “recurring consent.”
Public debate is how we reach “the cool and deliberate sense of the community.” As Willmoore Kendall observes:
As disciples of Publius, what we should want above all is for the relevant questions to be decided by the “deliberate sense of the community”—and the deliberate sense of the community is not about the intent of the Founders (it was, above all, that we should govern ourselves, and so prove to mankind that self-government is possible); and not, Talmudically … but about the merits of the competing policy alternatives amongst which we, as a self-governing people, are obliged to choose. Which is to say: about the appropriateness of competing policies to our conception of ourselves as a people, to our historic destiny as we understand it, to our settled views as to the nature of the good society. (1)
Progressives have looked to the Court to pave a constitutional path of egalitarianism and emancipation that eagerly departs from the text, believing, as they do, that they stand atop history and understand its architectonic flow. But originalism further enthrones the judiciary, putting our elites on the Bench, to chart a course back to the Founders. In short, we play a game of elites by relying on a few men and women in black robes. What’s the best play, though, with respect to the republican foundation of the Constitution and with regard to our long-term interests as those who value limited government? Putting authority to decide the meaning of the Constitution in the hands of the self-governing people is the superior move.
(1) Willmoore Kendall, “American Conservatism and the ‘Prayer’ Decisions,” Willmoore Kendall Contra Mundum.