Pluralistic Nonoriginalism and the Combinability Problem

Mitchell N. Berman & Kevin Toh

91 Texas L. Rev. 1739

PDF Document

Current proponents of the view articulated by originalists maintain that, subject to a few standard qualifications, judges deciding constitutional cases must enforce the constitutional law.  On the other hand, most proponents of the view articulated by nonoriginalists presumably reject the idea that the constitutional law consists solely of the meanings of the inscriptions in the constitutional text.  Yet, despite such disagreements between originalists and nonoriginalists, their respective views are not, strictly speaking, inconsistent.

In this Article, Professors Berman and Toh seek, first, to discredit the combinability problem and thereby facilitate development and eventual acceptance of pluralistic nonoriginalism. The Article does not solve the combinability problem. Rather, it dissolves it by exposing and making explicit a number of assumptions and predilections among constitutional theorists that are very much dispensable in favor of more credible alternatives. The bottom line, it argues, is that whether an originalist or nonoriginalist view of what our Constitution or constitutional law consists of is better than others depends on the fundamental constitutional facts of our legal system, and that there are no a priori grounds for thinking that a pluralistic nonoriginalist conception of those fundamental constitutional facts is a nonstarter.  Second, the Article seeks to devise a pluralistic nonoriginalist conception of constitutional law that is clear and plausible enough to provide a focal point for debates about constitutional interpretation.

Are We All Originalists Now? I Hope Not!

James E. Fleming

91 Texas L. Rev. 1785

PDF Document

In recent years, some have asked: “Are we all originalists now?”  Professor Fleming’s response is: “I hope not!”  In this Article, Professor Fleming explains why.  But first, he shows that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what Professor Fleming calls “the originalist premise.”  To answer the question affirmatively certainly shows that one is presupposing it.  The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation.  Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation.  Why so?  Because originalism, according to Professor Fleming, just has to be.  By definition.  In the nature of things—in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation.  This Article sketches some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms).  Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.

Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what Professor Fleming calls “constructivist.”  A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was.  It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory.  It would use history for what it teaches rather than for what it purportedly decides for us.  In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers.  We would understand that we—self-styled originalists no less than the rest of us—always read the past selectively, from the standpoint of the present, in anticipation of the future.  We look to the past, not for authoritative answers, but for illumination about our experience and our commitments.  Finally, we would understand that it dishonors the past to pretend—in the name of originalism—that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to abstract moral principles and ends.  Professor Fleming argues that fidelity in interpreting the Constitution as written requires a philosophic approach to constitutional interpretation.  No approach—including no version of originalism—can responsibly avoid philosophic reflection and choice in interpreting the Constitution.


Resistance to Constitutional Theory: The Supreme Court, Constitutional Change, and the “Pragmatic Moment”

B. Jessie Hill

91 Texas L. Rev. 1815

PDF Document

This Article approaches the law–politics divide from a new angle.  Drawing on the insights of literary theory, this Article argues that every act of interpretation, including constitutional interpretation, inevitably draws not only on text but also on context, and that the relevant context extends beyond both the written document and the historical context of its origination.  This understanding derives from speech-act theory and from postmodern literary theory.  As Paul de Man argues in his seminal essay, The Resistance to Theory, moreover, the act of interpretation always encompasses a “pragmatic moment” that undermines the effort to attain perfect theoretical coherence.  Applying this perspective to constitutional interpretation, this Article argues that neither constitutional theory nor politics, on its own, is capable of fully explaining constitutional interpretation and constitutional change.

In illustrating this phenomenon, this Article draws on recent scholarship about the recent evolution of constitutional doctrine in two areas—the Fourteenth Amendment and the religion clauses of the First Amendment—to demonstrate the dialectical interplay among text, principle, and pragmatism in constitutional interpretation and constitutional change.  Although the insights regarding the sources of constitutional change in these areas are not new, the original contribution of this Article lies in its reconfiguration of the theoretical understanding of how, and why, this change inevitably occurs.

Settled Versus Right: Constitutional Method and the Path of Precedent

Randy J. Kozel

91 Texas L. Rev. 1843

PDF Document

Constitutional precedents give rise to a jurisprudential tug-of-war.  On one side is the value of adhering to precedent and allowing the law to remain settled.  On the other side is the value of departing from precedent and allowing the law to improve.  In this Article, Professor Kozel contends that negotiating the tension depends on bridging the divide between constitutional precedent and interpretive method.

Professor Kozel aims to analyze the ways in which theories of precedent are, and are not, derivative of overarching methods of constitutional interpretation.  He seeks to demonstrate that although certain consequences of deviating from precedent can be studied in isolation, the ultimate choice between overruling and retaining a past decision requires the integration of a broader interpretive method.  Moreover, because a single interpretive philosophy may be derived from varying normative baselines, constitutional lawyers must press beyond the threshold election of competing methodological schools to engage with the schools’ respective foundations.  Whether one’s preferred approach is originalism, living constitutionalism, or otherwise, the importance of implementing a given constitutional rule depends on methodological commitments and the normative premises that inform them.


Administrative Constitutionalism

Gillian E. Metzger

91 Texas L. Rev. 1897

PDF Document

Federal administrative agencies often engage in “administrative constitutionalism” when interpreting and implementing the U.S. Constitution.  Defining administrative constitutionalism as the straightforward application of established constitutional requirements would unduly limit the scope of the concept however.  Administrative constitutionalism also encompasses the elaboration of new constitutional understandings by administrative actors, as well as the construction (or “constitution”) of the administrative state through structural and substantive measures.  Identifying administrative constitutionalism’s various forms highlights the central challenges confronting it as a form of constitutional interpretation.  Administrative constitutionalism efforts are often embedded in ordinary law contexts, and thus lack transparency.  This embedded nature poses a real accountability challenge linked to the difficulties of identifying instances of administrative constitutionalism.  Therefore, greater transparency is essential to the legitimacy of this method of constitutional development.  However, greater transparency invites more political or judicial veto, thus deterring administrative constitutionalism from occurring.  Professor Metzger lays out a potentially fruitful approach to increasing transparency without deterring valuable administrative constitutionalism.  The approach encourages more overt administrative engagement with constitutional concerns through the mechanisms of ordinary administrative law.  Although this approach has its merits with regard to administrative constitutionalism, Professor Metzger argues against extending its doctrinal and normative implications to constitutional construction more generally.  There are good reasons to resist erasing the doctrinal distinction between constitutional and ordinary law across the board, even if limiting the approach to the administrative context leads to some inconsistency between lived constitutional practice and constitutional doctrine.

Collective Action Federalism and Its Discontents

Neil S. Siegel

91 Texas L. Rev. 1937

PDF Document

An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation.  The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius.  Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.

In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for Congress to address the problem by relying on the Commerce Clause.  Unlike nationalist defenders of unlimited federal commerce power, a collective action approach does not ask whether the regulated conduct substantially affects interstate commerce in the aggregate.  Unlike federalist defenders of limited federal commerce power, a collective action approach does not focus on the distinction between economic and noneconomic conduct, or between regulating and requiring commerce.

Accordingly, nationalists may agree that a collective action problem is sufficient for Congress to invoke the Commerce Clause, but they will disagree that it is necessary.  By contrast, federalists may agree that a collective action problem is necessary for Congress to invoke the Commerce Clause, but they will disagree that it is sufficient.

This Article anticipates such criticism.  Regarding the nationalist critique of a collective action approach, Professor Siegel argues that the nationalist “substantial effects” test imposes no judicially enforceable limits on the scope of the Commerce Clause.  He also argues that nationalists may define multistate collective action problems too narrowly.  In addition to races to the bottom, collective action problems include interstate externalities that do not cause races to the bottom.

Broadening the definition of multistate collective action problems to include interstate externalities gives rise to the federalist objection that every subject Congress might want to address can plausibly be described as a collective action problem.  Federalists may further object that the Commerce Clause is limited to “Commerce.”  In response, Professor Siegel argues that “Commerce” is best understood broadly to encompass many social interactions outside markets, as Professors Jack Balkin and Akhil Amar have urged.  Professor Siegel also argues that a collective action approach need not validate unlimited federal commerce power.  Specifically, he identifies three ways of limiting the kinds of interstate externalities that justify use of the Commerce Clause.

We the People, They the People, and the Puzzle of Democratic Constitutionalism

David A. Strauss

91 Texas L. Rev. 1969

PDF Document

In what sense is the Constitution we live under today the product of “we the people”?  Despite the appeal of assigning a meaningful democratic pedigree to our Constitution, Professor Strauss identifies several questions that suggest that our Constitution is more the product of they the people, and that our system of common law constitutionalism has departed from what the ratifying and amending generations intended.  The idea of common law constitutionalism is that we resolve controversial questions of constitutional law not by examining the text of the Constitution but on the basis of precedents, both judicial and non-judicial, combined with judgments of fairness and good policy.  Professor Strauss demonstrates how common law constitutionalism can be democratic, despite the fact that it allows unelected judges to override the elected branches through judicial review.  Contrary to appearances, a judge-centric system is democratic for several reasons.  First, although federal judges do not run for office and cannot easily be turned out of office, they are embedded in a democratic system. Second, precedent reflects popular sentiment to a degree.  Finally, judicial review itself will become vulnerable if the courts deviate from public opinion too much and too often.  Therefore, although our written Constitution was the work of they the people, our evolutionary Constitution is, in important ways, the work of we the people.

Constitution-Making: An Introduction

Mark Tushnet

91 Texas L. Rev. 1983

PDF Document

Alexander Hamilton’s observation that the people of the thirteen colonies were the first to be given the opportunity to define their constitution “from reflection and choice” rather than “accident and force” may have been accurate, but that opportunity now extends to people everywhere.  The precise issues that constitution makers confront vary widely and depend on the specific historical circumstances under which they operate. Generalizations are difficult, perhaps impossible, to come by.  Yet, we can identify some issues about constitutional design that arise repeatedly.  Focusing on some of those issues, this Essay examines some of the more important conceptual and practical issues associated with modern constitution-making.  Part I asks: Why make a constitution?  Part II examines the definition of the people for and perhaps by whom the constitution is being made, and Part III turns to questions about the inclusiveness of the constitution-making process.  Part IV takes up questions about the scope and comprehensiveness of the constitution.  The conceptual and practical role played by the “constituent power” in constitution-making is a pervasive theme.

Property and Change: The Constitutional Conundrum

Laura S. Underkuffler

91 Texas L. Rev. 2015

PDF Document

The protection of property is of unquestioned importance in human lives.  It is therefore no surprise that the threat of collective action that will affect one’s property is an emotionally charged issue.  In the United States, the most well-known legal battleground for litigating the question of property rights and change is the Takings Clause of the Fifth Amendment of the Constitution.  Despite a sustained effort by the Supreme Court to articulate governing principles in this area of the law, the jurisprudence that has emerged remains largely incoherent, and of “essentially ad hoc, factual” decisionmaking.  In analyzing this inadequate treatment, Professor Underkuffler argues that it is the collision of the idea of property with the idea of change that is to blame.  The Court has been unwilling or unable to intellectually reconcile the incompatibility of the ideas of property and change that lies at the core of its incoherent takings jurisprudence.  The unique characteristics of property as a right—its rivalrous nature and its meaning as protection—have made the idea of competing interests uniquely difficult to accommodate intellectually in this context.  Rather than acknowledge and deal openly with this problem, the Court has attempted to mask it in various ways.  This myopic view of property rights and change has led to an artificially concrete idea of property, which ignores the existence and merit of competing public interests.

Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions

Mitchell N. Berman

91 Texas L. Rev. 1283

PDF Document

The Supreme Court’s feverishly anticipated decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”) produced three main holdings concerning two critical provisions of the Act.  The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance.  The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. In a 7–2 decision, the Court struck down this provision as an impermissible condition on the provision of federal funds to the states.  Of these three holdings, the third—concerning what is often called Congress’s “conditional spending power”—is apt to have the most far-reaching consequences beyond health care.

In this Article, Professor Berman advances four main arguments.  First, insofar as the majority rested its holding of unconstitutionality on the ground that the amount of funds that a state would lose by not agreeing to the condition was so great as to compel the states to accept, that is a highly dubious rationale.  Second, it does not necessarily follow that the Court’s bottom-line conclusion was wrong.  A more promising rationale for that conclusion would be the one merely hinted at by the Chief Justice: Congress’s threat to withhold all Medicaid funds from a state if it did not agree to provide for a new class of beneficiaries would constitute the constitutional wrong of coercion if animated or infected by a bad purpose.

Third, the basic principles that govern whether a conditional spending offer from the national government to the states is unconstitutionally coercive are not particular to the conditional spending context.  Instead, they lie at the heart of a general solution to the ubiquitous puzzle of “unconstitutional conditions”—that is, the puzzle regarding whether and under what circumstances it is constitutionally permissible for government to condition a benefit on an offeree’s exercising or not exercising its constitutional rights in some preferred way.  Fourth, application of these general “trans-substantive” principles to the instant case suggests that the Medicaid expansion probably was coercive and therefore the Court was probably right—though not for the reasons it gave—to hold that that provision exceeds our best understanding of constitutional limits on Congress’s power.