Barnett Right -- Cramer, Bainbridge, Courreges Wrong!

The debate regarding the proper meaning of the 9th and 14th Amendments has once again erupted in the blogsphere. Personally, I side with Randy Barnett. Barnett’s critics this time are Clayton Cramer, Steven Bainbridge, and Owen Courreges. Barnett has already effectively answered their claims in his book.

Barnett and other bloggers have already responded in a number of posts. I want to answer to one specific, but powerful, criticism that Barnett’s adversaries put forth. Cramer, et al., use Barnett’s defense of the recent Lawrence decision on originalist grounds, to criticize his overall approach. Their argument goes something like this: At the time the Constitution was written, “sodomy” was outlawed in most places. If you asked the Framers of these relevant Constitutional texts, specifically, “do you think that what you are ratifying grants the ‘right’ to practice sodomy,” almost all of them would reply, “no.” But since that question was never asked of the Framers (and since they didn’t supply this specific answer in the text); we must adduce the answer. And how did we so do? By looking to what the framers did, seeing what laws were (un-controversially) on the books, etc., at that time. Since all of the states had (uncontested) “sodomy” laws on their books, and since the framers generally at that time (subjectively) did not conclude that the adoption of the 9th or 14th Amendments would interfere with the existence of such laws, we rightly conclude that the 9th or 14th Amendments should not in any way prevent states from criminalizing this conduct on constitutional grounds.

The problem with this line of reasoning is that it is itself, “non-original.” That is, the framers themselves did not intend future generations to interpret the Constitution in this manner. There are indeed certain provisions of the Constitution that are “specifically timeless”—that is, because the answer is easily found within the Constitution’s text, the document, as originally written, must be interpreted in this or that specific manner on a particular question as long as that clause or provision in question has not been amended. For instance the Constitution states, “neither shall any Person be eligible to that Office [the Presidency] who shall not have attained to the Age of thirty five Years….” In other words, you must be at minimum 35—not 34, not 36—years of age, in order to be President. Specific question, specifically answered.

However, not all of the Constitution was written in such precise terms. The founders knew that they couldn't nor shouldn’t answer all of the specific Constitutional questions that might later present themselves, so they intentionally used “vague” (although not “vacuous”) language, to serve as a general guide, as they intentionally left specific questions to be answered by future generations. As Barnett writes:

Indeed, terms and phrases are often chosen by legal drafters precisely because they are less rather than more precise than other available formulations. Drafters who, perhaps for political reasons, wish to avoid appearing to endorse a controversial result in a particular situation may use a phrase whose meaning is sufficiently “fuzzy at the edges” that it is unclear whether or not it would reach that result.

Restoring the Lost Constitution, p. 118.

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In other words, when constitutional texts are written with such a level of generality, we rightly conclude that the proper answers to specific questions relating to these texts do not turn on how the Framers at that time would most likely have subjectively answered, but rather on how the society at the present time the case and controversy is presented should answer consistent with the original “core meaning” of the rather general phrase. This doesn’t make the Constitution a “living document” whose general rules change with a historical whim—but it does make the constitution into a “flexible” document that supplies unchangeable general norms that are nonetheless capable of “fitting” specific future circumstances where changes in culture, knowledge, and/or other circumstances, have occurred. As Barnett writes: “Because its language is deliberately vague in places, the Constitution can be applied to far more situations and changed circumstances than had every provision been expressed with rule-like precision.”

None of Barnett’s critics can point to a particular text in the Constitution (as we could regarding the suitable age for the Presidency), that specifically tells us that states could outlaw “sodomy.” This question simply is specifically unanswered by our constitution. And when we don’t have a precise answer, the proper way to interpret the Constitution is by an objective inquiry into the “core meaning” that the general text had at the time, and the subsequent adoption of a more specific bright line rule that is “consistent with the original meaning,” but not necessarily “deducible from it.” The fact that the US Constitution on its face does not answer the "sodomy" question leaves a “gap” in the Constitution. Proper jurisprudence must fill the gap between the “abstract or general principles of the kind found in the Constitution and the rules of law that are needed to put these principles into action. This does not mean, however, that the choice of rules is unguided by these abstract or general principles.”

Richard Posner, although not quite an avowed “originalist” like Barnett, responds similarly that the founders did not intend the Constitution to be interpreted in the way that Bork, et al., desire:

When a constitutional convention, a legislature, or a court promulgates a rule of law, it necessarily does so without the full knowledge of the circumstances in which the rule might be invoked in the future. When the unforeseen circumstance arises—it might be the advent of the motor vehicle or of electronic surveillance, or a change in attitudes towards religion, race, or sexual propriety—a court asked to apply the rule must decide, in light of information not available to the promulgators of the rule, what the rule should mean in the new setting. Overcoming Law, at p. 231.

I think I can anticipate Clayton Cramer’s response: The Framers may not have known of the existence of condoms, DVDs, machine-guns or the broadcast media, but they did know that “sodomy” existed. Therefore “sodomy” is not an “unforeseen circumstance” that could not have been dealt with. But what of changes in attitudes, values, knowledge, or the “rethinking” through certain “ideals” in way different, but perhaps broader and more consistent, than the framers' original contemplations? (For instance, is there any evidence that any framer really spent much time deliberating the legitimacy of “sodomy” laws? Maybe if some of the framers, Jefferson & Madison for instance, truly thought through their ideals—one of which was that government may only proscribe such behavior that is “injurious to others,” that picks the pockets or breaks the legs of non-consenting parities—that they would rightly conclude that government has no business proscribing wholly consensual “sodomy.”)

Finally, the approach that Cramer, et al. take is untenably because it leads to ghastly results. As Posner notes:

No constitutional theory which implies that Brown v. Board of Education was decided incorrectly will receive a fair hearing nowadays, though on consistent applications of [Bork’s, Cramer’s type of] originalism it was decided incorrectly. Yet on its face the equal protection clause guarantees not legal equality but merely equal protection of whatever laws there may happen to be, and its background was the refusal of law enforcement authorities in southern states to project the freedmen against the private violence of the Ku Klux Klan.” Id. at p. 247.

We can pose the same subjective question regarding the specific permissibility of “segregated public schools” in the “minds” of those who ratified the 14th Amendment and come forth with this conclusion: Segregated public schools (as well as other types of segregated public instititutions) were prevalent and uncontroversial at the time the 14th Amendment was ratified. There is no evidence that the framers who ratified the 14th Amendment believed that it would mandate the end of segregated schools. If the 14th Amendment properly outlawed segregated public schools then Brown, like Lawrence, outlawed something “that the ratifiers had no idea of outlawing.” Id., citing, Bork, The Tempting of America, at p. 214.

Yet, Barnett’s original jurisprudence—one that looks primarily to see if the specific question has been answered by the text in question (and in Brown, like Lawrence, the answer is no), but then concerns itself with a general application of the principles contained within the constitutional text, “consistent with the original meaning”—does allows for an originalist defense of Brown (and Lawrence).

Bork flinched on this issue and couldn’t bring himself to publicly state that Brown v. Board of Education was improperly decided even though he laid the groundwork for this inevitable conclusion (and Posner takes him to task for it).

Other originalists—Lino Graglia, Raul Berger, Joe Sobran, and others—to their credit in courageously applying a similar original jurisprudence have held that Brown was wrongly decided. I wonder how Bainbridge, Cramer, Courreges, et al. feel about this case?