The originalist illusion

Cass Sunstein reviews a new libertarian interpretation of the Constitution in the current New Republic. His critique of Richard A. Epstein's The Classical Liberal Constitution appears to expose a contradiction in the typically conservative "originalist" approach to the Constitution -- the idea that we should interpret that document according to the Framers' understanding of what their words meant in 1787. According to Sunstein, Epstein is not an originalist. Even though Epstein stresses the need for "detailed textual analysis" of the Constitution, he has said elsewhere that "in no legal system at any time could the question of construction be reduced to a search for original public meaning of terms that are found in the constitutional text." In that case, what's the guiding principle of "detailed textual analysis." Sunstein cites Epstein's opinion that "only through the use of a general theory" can the tough questions be answered. Literal originalism "ignores the relationships between text, structure, and basic normative theory," Epstein says. The "basic normative theory" appears to be crucial, but this must be found outside the Constitution itself. According to Sunstein, Epstein "acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation." Epstein writes that "our basic conception of the proper scope of government action will, and should, influence the resolution of key interpretive disputes." The "basic conception of the proper scope" is presumably synonymous with the "basic normative theory" or "general theory." For Epstein, all of these boil down to "classical liberalism" as it evolved from the English common law tradition. While he can show that classical liberalism was popular and influential in the Framers' time, Sunstein suggests that Epstein can't  or doesn't bother trying to prove that the actual text of the Constitution expresses that ideology.

Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one," Sunstein writes of Epstein, "Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires." This matters, Sunstein claims, because "Epstein's readings of the theorists and the Founders is not at all obvious or uncontroversial. There are other ways to read them. Many students of the liberal political tradition ... have raised serious questions about the supposedly libertarian nature of classical liberal theory." Under such circumstances, Epstein's interpretation of the Constitution reflects nothing more than his own moral preference for limited government and the maximum protection for property and contract. While Sunstein stops short of identifying Epstein as a Tea Partier, he notes that some TPs look to him as a guiding theorist -- they like his notion that many laws violate the Fifth Amendment -- and remarks that "the risk with anything like Tea Party constitutionalism is that it speaks not for the eighteenth-century Constitution, but for the contemporary moral and political views of those who endorse it."

Sunstein implies that TP theory, if not Epstein's libertarianism, is actually alien to the Founding, if not to the eighteenth century. But whether that matters depends either on whether Cass Sunstein himself is an originalist or whether there's as meaningful a difference as Sunstein thinks between Epstein's thinking and originalism. It seems to me that any originalist interpretation depends on assumptions about the Framers' beliefs that can only be verified, if they can be verified, with reference to documents other than the Constitution. Right-wing originalists like Justice Scalia (who often disagrees with Epstein, Sunstein writes) aren't simply playing word games. You can read ideology into a text but you can't infer ideology from a text unless the text itself is the foundation of the ideology, in which case outside influences lose much of their relevance since there's no prior ideology. The whole point of originalism, it seems, is to identify a prior ideology -- usually something to do with English common law or natural-rights philosophy -- that preemptively explains the Constitution for all time. I recall the opinion in a key gun-rights case, for instance, invoking a pre-existing natural right to self-defense to justify a broad construction of the Second Amendment. To argue that originalism is something significantly different from Epstein's approach may make sense to a specialized observer like Sunstein, but Epstein may simply have pulled aside the curtain of originalism to reveal modern-day ideologues, or simply radio blowhards, in place of the Framers. The real question that follows from Epstein's argument, or what Sunstein describes of them, is whether any "basic conception of the proper scope of government action" is incompatible with the Constitution." A line may well be drawn despite Sunstein's own presumed hopes for a flexible Constitution, but if the "basic conception" decides what the Constitution means to us, it may also oblige us to amend or replace the Constitution as our conceptions and theories evolve.