Monday, February 13, 2006

One of Us?

I, too, am a little confused by Randy Barnett’s critique of what he calls the “underlying principles” approach to constitutional interpretation. In his Taft Lecture, Barnett says that many people, deterred from originalism by the various criticisms made of that approach, appeal instead to what they believe are the “underlying principles” of the Constitution, and then apply those. This, he says, allows people to find ways around the sometimes troubling implications of a strict originalism. People adopting the underlying principles approach “point to particular cases we today all accept as sacred, Brown v. Board of Education, is perhaps the most canonical...[and thenm claim] that because the original meaning of the text cannot deliver this result, it must be rejected as morally inferior.” Then such people claim that their underlying principles approach will yield such results.

What’s interesting is that this sounds like a critique of the liberal originalism approach advanced by, among others, Scott Gerber. Gerber argues that the Constitution must be interpreted through the lens of the Declaration of Independence—that the Declaration gives us the underlying principles of political philosophy which ought to guide our reading of the Constitution.

But is that what Barnett is saying? Perhaps not. He says, for example, that the underlying principles approach that he’s targeting is one which appeals to principles which “are not themselves in writing,” which, of course, the Declaration certainly is. And Barnett hints that he thinks that a proper originalism might yield the result of Brown: "Very often a proper version of original meaning originalism offers support for results that present doctrine has a difficult time justifying." He doesn’t actually say that his originalism would have eradicated segregation, but that seems to be what he’s hinting. The reason that’s important is that liberal originalism certainly would yield the result (though not the reasoning) of Brown, as Justice Thomas’ dissents in various affirmative action cases shows. And Barnett’s fondness for the anti-slavery constitutional theory of Lysander Spooner suggests an affinity with liberal originalism. Liberal originalism is really just the good old fashioned anti-slavery constitutionalism of Spooner, Frederick Douglass, and Gerrit Smith.

Moreover, Barnett’s laudable fascination with the Ninth Amendment strongly suggests that he, too, must be guided by liberal originalism. He complains that Scalia’s version of originalism (which we call “conservative originalism”) would knock over the Ninth Amendment because it’s not rule-like, but refers to abstractions like “other rights.” The liberal originalist says that to understand a phrase like that, you must consult the Declaration, which refers to the “inalienable rights” among which are life, liberty, and the pursuit of happiness. How are we to understand such words as “rights” or “liberty” which are used in the Constitution if not by reference to the Declaration? Barnett is very eager to use contemporary textual sources as evidence for understanding the objective meaning of terms at the time of their enactment; he consults newspapers and dictionaries. Why not, then, the Declaration of Independence, which certainly was well understood by the founding generation? Obviously it will not solve every definitional problem, any more than a dictionary will. But it is a textual source, and more. It is the great guidepost by which we can navigate when doing some of the bigger work of constitutional reading. When we are trying to understand just what the “privileges or immunities of citizens of the United States” are, the Declaration comes in awful handy. More handy, I would say, than the Pennsylvania Gazette, or whatever it is.

So is Barnett assuming that liberal originalism and his “original meaning originalism” are identical, and aiming his critique at other kinds of “underlying principles” approaches? Perhaps, although I don’t know that Barnett has ever made a public statement one way or the other about Gerber’s arguments. And even if so, he must explain what it is that makes his critique not apply to liberal originalism. Is Barnett just criticizing the un-written versions, like Bruce Ackerman’s revolting argument that the New Deal “amended” the Constitution? If so, it would be nice to see him say it.