Wednesday, February 23, 2011

Original Meaning or Something Else (and if so, what?)

The Institute of Bill of Rights Law here at the William and Mary School of Law has posted the video of a debate between your humble blogger (pictured above on the right) and Michael Klarman (pictured above on the left), the Kirkland and Ellis Professor of Law at Harvard Law School. Here is a link to the video, which is in several parts. (The photo of Professor Klarman and myself, taken in the Institute, served as promotional material for a prior debate. Note the painting of the Constitutional Convention in the background.) Not surprisingly, I took the position that, when interpreting the Constitution, courts should adhere to the original public meaning of the document, endorsing the argument for Constitutionalism and judicial review articulated by John Marshall (pictured above) in Marbury v. Madison and Alexander Hamilton in Federalist 78.

As John Marshall put it in Marbury:

"That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent." (emphases added).

According to Marshall, then, the Constitution is binding because the People --- the ultimate repository of sovereignty --- are empowered to exercise that sovereignty in a manner that establishes the authority and limits of their government. The principles thereby established, Marshall says, are "fundamental" and "designed to be permanent." That is, such principles bind future generations, the government officials they elect, and the judges that such officials appoint and confirm.

This rationale for why the Constitution is binding, I (and others before me) argue, has certain implications for how courts (and other governmental actors) should go about interpreting the Constitution when called upon to do so. Thus Judges, for instance, should not treat the Constitution and judicial review as a license to choose whichever interpretive theory they please. Instead, the embrace of judicial review implies certain limits on the manner in which such authority is exercised. That is, the Constitution, from which judges derive their entire authority, imposes upon judges (and other officials) a duty to enforce the document's original meaning; nothing more and nothing else. Failure to execute this duty by, for instance, sustaining a statute contrary to the document's original meaning contravenes Marbury's rationale for a written, binding constitution as well as the rationale for empowering judges (and other officials) to enforce that document. In my view, then, a judge who purports to exercise judicial review while intentionally ignoring the original meaning of the constitution is not exercising "judicial power" in the first place, but is instead purporting to exercise an extra-constitutional authority not contemplated by the document or its ratifiers.  (I have articulated this account of Marbury, along with some other implications of the decision, in a lengthy, previous post here.)

Watch the video to see Professor Klarman's response!

One final note.

I've had the pleasure of debating Professor Klarman four times --- three times here at William and Mary on Originalism and once at the University of Virginia on the soundness (or not) of the Supreme Court's decision in Bush v. Gore. He is an extraordinary scholar and person, and he has been a great friend to me over the years. I look forward to future debates!