The pursuit of extra-constitutional natural law theories makes for strange bedfellows.
My last post described the most important recent trend in originalism—the thickening of meaning by reference to the pervasiveness of the Constitution’s legal background. Legal rules at the time of the Framing help clarify its ambiguities and make more precise its occasional surface vagueness. The most important implication of the thickening of originalism is to challenge ideologically comprehensive originalism—the use of an ostensibly originalist vision of Constitution to suggest that it almost invariably favors one ideology.
By putting the Constitution’s legal background front and center, thick originalism makes a comprehensive victory for any ideology less likely for three reasons. First, the legal background is a complex one given by the tradition of law, including the common law and in some cases the law of nations over centuries. This law is very unlikely to line up with any contemporary ideology, not least because of complexity and its accretion in a past even more distant than that of the Framing itself.
Second, in one sense the common law background of the Constitution is distinct from and in opposition to the Enlightenment thinking that gave rise to modern ideology. Bernard Bailyn, the famous historian of the ideas behind the American Revolution once stated: “English law—as authority, as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.”
The Constitution itself was product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. And the common law reflects a kind of winding historicity whereas Enlightenment thinking derives political structures from the logical implications of core axioms. The first is much less amenable to a comprehensive ideology than the second. And indeed two recent articles that provide examples of considering legal rules to resolve constitutional meaning and were discussed in my last post, Preemption by Caleb Nelson and The Constitution and the Law of Nations by Anthony Bellia and Brad Clark, take positions that are quite nuanced and do not fit with the traditional conservative, libertarian or left-liberal constitutional views on the subject of either preemption or customary international law.
Third, by clarifying language that is otherwise ambiguous or vague, thickening orignalism gives less room for scholars to move ambiguity and vagueness toward their preferred ideology. Because meaning is better tied down, spinning becomes less possible. Mike Rappaport and I hope that will be one of the legacies of our theory of original methods originalism described in our recent book, Originalism and the Good Constitution.
Another trend that will reinforce these advantages is the rise of specialists over generalists in constitutional scholarship, as the legal academy generally becomes more specialized. A generalist can relatively easily organize the words of the Constitution by imposing some external presumption on them—be it a presumption in favor of democracy or liberty. But to understand the complex legal background behind particular phrases, like the “non obstante” clause, takes very substantial work, in some cases years of study.
For instance, I saw this tension between generalists and specialists in The Classical Liberal Constitution by Richard Epstein, a classic generalist as well as a classical liberal. While it was a substantive and stimulating book, in many instances it did not consider the substantial scholarship on particular clauses written by specialists, most notably on the Second Amendment. But originalism will be credible only if it makes use of all the knowledge that specialists are generating.