The common law understanding that what judges do is a matter of finding the law is enjoying a welcome return.
The most important recent development in originalism has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law. This recognition has led to at least four different ways in which originalism has been thickened.
First, whole clauses in the Constitution are not comprehensible without understanding a complex body of preexisting domestic law, including rules of interpretation, of which most modern readers would be oblivious. A fine example of the importance of this approach is the article Preemption by Caleb Nelson. Here Nelson shows that the phrase “anything in the law notwithstanding” which appears at the end of the Supremacy Clause in Article VI, is not just verbal filler but a familiar kind of legal signal called “non-obstante” clause. It was added to the Constitution to block a rule of interpretation that required courts to harmonize prior statutes with subsequent statutes even if on their face there was an appearance in conflict. This discovery has real bite: it indicates that there is no general presumption against preemption.
Second, it is not only domestic rules that form the background for fixing constitutional meaning. In The Law of Nations as Constitutional Law, Anthony Bellia and Brad Clark suggest that provisions, like the President’s power to send and receive ambassadors, and the Congress’s authority to declare war, can be understood only by reference to background principles of the law of nations. This article too has much contemporary relevance since it justifies application of the settled principles of the law of nations to override state law to protect such Article I and Article II powers of the federal government.
Two other examples of thickening originalism may even have more far reaching consequences because they are not focused on specific clauses, but are of general application. In his article Constitutional Backdrops Stephen Sachs has persuasively argued that there is category of rules that are not actually in the Constitution but preexist the Constitution and are left unaltered by its adoption. He calls these rules constitutional backdrops and argues that they may have binding effects even after the adoption of the Constitution. Sachs provides a variety of examples of constitutional backdrops–rules about defining the borders of states, the contempt power, and the rule against legislative entrenchment. While these rules are not themselves part of the Constitution, Sachs argues that they can be changed only by procedures that the Constitution permits.
Finally, in our recent book, Originalism and the Good Constitution, Michael Rappaport and I have argued that the original methods of interpreting the Constitution help constitute the meaning of the Constitution, no less than the do the rules of grammar. The Constitution declares itself to be law and thus to understand what a fully informed observer would consider its meaning to be, one must look beyond word meanings to the interpretive rules that were customarily applied to such a document. Writing independently of our views, Akhil Amar provides some interesting examples of this interpretative approach in the first chapter of his book, The Unwritten Constitution. More generally, this view opens up a research agenda to discover what those methods were.
In my next post, I will consider some the implications of this development for constitutional theory and consider why it is occurring now.