Saving Originalism

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, funny phrasing, and odd language. Amar’s earlier book, America’s Constitution: A Biography, displayed his contagious enthusiasm for the Constitution and its history. Postmodern theories, the Frankfurt School, or economic determinism did not make an appearance in his holistic interpretation of the Constitution. But like many a biographer, Amar cannot admire his subject if it has great faults. Some biographers fail because their admiration overwhelms their objectivity, and they tend to minimize or ignore serious personal flaws. Amar, however, is too honest to ignore his subject’s blemishes. He is faced with the quandary of an imperfect Constitution. His answer is to bend, pull, and stretch the original into a better form— a constitutional photoshop for the twenty-first century. Amar appears to get cold feet in the face of “the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be.” Readers must judge whether his quest for perfection has overwritten, if not erased, the original image. In this sequel, America’s Unwritten Constitution: The Precedents and Principles We Live By, Amar tries to save the object of his affection from the success of Biography. Amar’s method, however, yields conclusions that many leading constitutional law scholars would find unacceptable. Under a strict originalist approach, the Fourteenth Amendment does not appear to prohibit segregation by gender. Critics like David Strauss argue that originalism would permit racial segregation by the federal government, and perhaps by the states too, and would not have incorporated the Bill of Rights against the states. An original Constitution might not provide for a right to privacy or recognize a woman’s right to an abortion. It could reject parts of the large federal administrative state in areas such as the environment and labor, and it could restrict the scope of freedom of speech, including core political speech. It may well be that textualism and originalism, properly applied, do not produce these outcomes, but most constitutional law scholars appear to believe that the framers’ Constitution is doomed by these interpretive methods. Amar loves the Constitution so much that he cannot allow it to suffer what he sees as crippling, perhaps mortal, flaws such as these. But Amar has a tool that does not lay in the kit of a normal biographer. Faced with serious faults in his subject, Amar corrects them. His remedy is to invent an unwritten Constitution that sits beside the written text. While he cautions that his unwritten Constitution “supplements but does not supplant” the written one (p. 273), he also admits that a “particular unwritten rule or principle [can] form[ ] part of America’s Constitution—and is thus roughly on a par with or somehow akin to the canonical text” (p. 479). “America’s unwritten Constitution and America’s written Constitution fit together to form a single system” (p. 479). Although Amar would not describe it as such, the unwritten Constitution functions to cure virtually every supposed imperfection in the written version. And this simply cannot be right. As one of Amar’s most penetrating critics has rightly said, “[t]he Constitution is not an unwritten vessel into which to pour the objects of one’s interpretive desires. And it is on precisely this score that America’s Unwritten Constitution is most deeply and seriously flawed.” In this Review of Unwritten, we will make three points. First, we will describe Amar’s method in revealing an unwritten Constitution. We will use women’s rights as an example of a gap in the written Constitution that Amar corrects with a variety of sources. While we agree with his results as a matter of policy, we argue that, without the originalism of Biography, Unwritten contains no consistent limits on its sources and methods. Second, we delve deeper into the history of originalism as an interpretive method to show that it is not as flawed, perhaps, as Amar might think. While it arguably might have been conceived as a response to judicial activism of the Warren Court era, originalism has evolved into a sophisticated approach to constitutional interpretation that does not advance any particular political ideology. Third, we take up the question of instrumental or consequentialist reasons for originalism. We use bargaining theory to explain why originalism could have served as an important aid to the formation and continuation of the Union

Saving Originalism

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, funny phrasing, and odd language. Amar’s earlier book, America’s Constitution: A Biography, displayed his contagious enthusiasm for the Constitution and its history. Postmodern theories, the Frankfurt School, or economic determinism did not make an appearance in his holistic interpretation of the Constitution. But like many a biographer, Amar cannot admire his subject if it has great faults. Some biographers fail because their admiration overwhelms their objectivity, and they tend to minimize or ignore serious personal flaws. Amar, however, is too honest to ignore his subject’s blemishes. He is faced with the quandary of an imperfect Constitution. His answer is to bend, pull, and stretch the original into a better form— a constitutional photoshop for the twenty-first century. Amar appears to get cold feet in the face of “the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be.” Readers must judge whether his quest for perfection has overwritten, if not erased, the original image. In this sequel, America’s Unwritten Constitution: The Precedents and Principles We Live By, Amar tries to save the object of his affection from the success of Biography. Amar’s method, however, yields conclusions that many leading constitutional law scholars would find unacceptable. Under a strict originalist approach, the Fourteenth Amendment does not appear to prohibit segregation by gender. Critics like David Strauss argue that originalism would permit racial segregation by the federal government, and perhaps by the states too, and would not have incorporated the Bill of Rights against the states. An original Constitution might not provide for a right to privacy or recognize a woman’s right to an abortion. It could reject parts of the large federal administrative state in areas such as the environment and labor, and it could restrict the scope of freedom of speech, including core political speech. It may well be that textualism and originalism, properly applied, do not produce these outcomes, but most constitutional law scholars appear to believe that the framers’ Constitution is doomed by these interpretive methods. Amar loves the Constitution so much that he cannot allow it to suffer what he sees as crippling, perhaps mortal, flaws such as these. But Amar has a tool that does not lay in the kit of a normal biographer. Faced with serious faults in his subject, Amar corrects them. His remedy is to invent an unwritten Constitution that sits beside the written text. While he cautions that his unwritten Constitution “supplements but does not supplant” the written one (p. 273), he also admits that a “particular unwritten rule or principle [can] form[ ] part of America’s Constitution—and is thus roughly on a par with or somehow akin to the canonical text” (p. 479). “America’s unwritten Constitution and America’s written Constitution fit together to form a single system” (p. 479). Although Amar would not describe it as such, the unwritten Constitution functions to cure virtually every supposed imperfection in the written version. And this simply cannot be right. As one of Amar’s most penetrating critics has rightly said, “[t]he Constitution is not an unwritten vessel into which to pour the objects of one’s interpretive desires. And it is on precisely this score that America’s Unwritten Constitution is most deeply and seriously flawed.” In this Review of Unwritten, we will make three points. First, we will describe Amar’s method in revealing an unwritten Constitution. We will use women’s rights as an example of a gap in the written Constitution that Amar corrects with a variety of sources. While we agree with his results as a matter of policy, we argue that, without the originalism of Biography, Unwritten contains no consistent limits on its sources and methods. Second, we delve deeper into the history of originalism as an interpretive method to show that it is not as flawed, perhaps, as Amar might think. While it arguably might have been conceived as a response to judicial activism of the Warren Court era, originalism has evolved into a sophisticated approach to constitutional interpretation that does not advance any particular political ideology. Third, we take up the question of instrumental or consequentialist reasons for originalism. We use bargaining theory to explain why originalism could have served as an important aid to the formation and continuation of the Union

Who Decides Disputed Presidential Elections: Congress or the Vice President?

The 2020 elections raised fundamental questions about the resolution of disputes over presidential electors. Challenges to the legitimacy of President Joe Biden's victory arose because of the 12th Amendment's silence to the Constitution, saying in the passive voice that, after the vice president opens the electoral ballots before both houses of Congress, "the votes shall then be counted."We argue that the best reading of the Constitution finds that the vice president has the primary authority to resolve disputes over the legitimacy of electoral votes. While this is a difficult question with several alternative solutions, the constitutional structure and design should provide the answer. The Constitution rejects popular selection of the president by the electorate as a whole, Congress, or the House of Representatives.Instead, the framers created a state-centric process for choosing the president that relies on state legislatures to choose electors. Allowing Congress to reject electors sent by the states on grounds created by Congress alone would undermine the founders' design. Instead, the Constitution leaves the resolution of disputes over competing electoral slates up to the vice president as the least-worst option among the various alternatives. Short of dueling electors, the Electoral College system relies on the states to create a system for choosing electors and settling questions over their legitimacy.This reading of the Constitution has important implications for recent proposals to amend the Electoral Count Act (ECA). These amendments would raise the minimum number of votes required to challenge electoral votes in the House and Senate, and they would set out presumptions in favor of different branches of state government in the certification of electors.These proposals, while perhaps useful in the context of the ECA, do not address its core constitutional defect. Even if Congress adopts these proposals, it has still seized the power to reject electors even if a state has sent a single slate forward for opening and counting in the special joint session under the 12th Amendment. This violates the separation of powers and the founders' design that presidential selection rest on the people acting through the states, rather than Congress

Kant, Habermas and Democratic Peace

Our core claim, then, is this: Habermas conceives the Kantian project to be one of securing global peace and upholding basic human rights through strengthening and expanding supranational and transnational institutions. In substance, he is offering a kind of Kantian world federalism as the way forward for the global community of states. We consider that approach fundamentally mistaken. In our view, democracy-promotion is clearly the better path. It recognizes the necessity and desirability of a plurality of independent nation states. It is more protective of both the freedom of individuals and the cultural identities of peoples. It is far more likely to yield a durable global peace. And it can form the basis of a foreign policy that serves the national security interests of the US and its leading allies. In Section I, we begin by outlining Immanuel Kant\u27s views on war and peace. In Section II, we set forth and criticize Habermas\u27 version of the Kantian project. In Section III, we explain the democratic peace thesis more fully and argue that democracy-promotion will not only tend to promote global peace and respect for human rights, but will serve the national security interests of the world\u27s leading democratic powers by doing so

Peace Through Law? The Failure of a Noble Experiment

Ever since its publication in 1929, Erich Maria Remarque\u27s All Quiet on the Western Front has been regarded as a landmark of antiwar literature. Appearing a decade after the end of the First World War, the novel became a literary sensation almost overnight. Within a year of publication, it had been translated into twenty languages, including Chinese, and by April 1930, sales for twelve of the twenty editions stood at 2.5 million. Remarque was reputed to have the largest readership in the world. Hollywood took note, and an equally successful film appeared in 1930. The success of the novel was as unexpected as it was spectacular. Readers across Europe had displayed little interest in books about the war throughout the 1920s, but after Remarque\u27s success, the public\u27s appetite proved voracious. It was as if the publics of the great belligerents needed the perspective of a decade before they could begin to relive the experience of the war

Peace Through Law? The Failure of a Noble Experiment

Ever since its publication in 1929, Erich Maria Remarque\u27s All Quiet on the Western Front has been regarded as a landmark of antiwar literature. Appearing a decade after the end of the First World War, the novel became a literary sensation almost overnight. Within a year of publication, it had been translated into twenty languages, including Chinese, and by April 1930, sales for twelve of the twenty editions stood at 2.5 million. Remarque was reputed to have the largest readership in the world. Hollywood took note, and an equally successful film appeared in 1930. The success of the novel was as unexpected as it was spectacular. Readers across Europe had displayed little interest in books about the war throughout the 1920s, but after Remarque\u27s success, the public\u27s appetite proved voracious. It was as if the publics of the great belligerents needed the perspective of a decade before they could begin to relive the experience of the war