Liberalism and Disagreement in American Constitutional Theory

By J. Joel Alicea*

Article — Volume 107, Issue 8

Dec 28, 2021
107 Va. L. Rev. 1171
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*Assistant Professor of Law, the Catholic University of America, Columbus School of Law. I thank Richard Fallon, Jack Goldsmith, Jeff Pojanowski, Nelson Lund, Yuval Levin, Sherif Girgis, Alex Potapov, John Ohlendorf, and Henry Stephan for their comments on earlier drafts. I also thank Bonaventure Chapman, Melissa Lane, Philip Neri Reese, Dominic Verner, and the participants of the Catholic Law Faculty Research Series workshop for helpful conversations or email exchanges. Finally, I thank Steve Young and Tabitha Kempf for outstanding research assistance.Show More

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused on the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.

Introduction

The story of American constitutional theory over the last forty years has been the battle between originalism and non-originalism. In the academy, the field of constitutional theory has been organized into these two camps1 1.See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice 26 (Apr. 3, 2019) (unpublished manuscript) (on file with author), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940215 [https://perma.cc/27DK-CPBY] (“normative constitutional theory is currently in a state of dialectical impasse” between originalists and non-originalists); Jack M. Balkin, Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time, 98 Tex. L. Rev. 215, 245 (2019) (describing originalism and living constitutionalism as “the two major schools of modern constitutional theory”); David Singh Grewal & Jedediah Purdy, The Original Theory of Constitutionalism, 127 Yale L.J. 664, 666 (2018) (book review) (“The conflict between various versions of ‘originalism’ and ‘living constitutionalism’ has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating.”); Joel K. Goldstein, History and Constitutional Interpretation: Some Lessons from the Vice Presidency, 69 Ark. L. Rev. 647, 647 (2016) (“In recent times, the principal demarcation in academic discussions of constitutional theory and judicial decision-making separates originalists and living constitutionalists.”); Louis J. Virelli III, Constitutional Traditionalism in the Roberts Court, 73 U. Pitt. L. Rev. 1, 11 (2011) (“Constitutional theory is often described as consisting of two distinct and entrenched camps: ‘living constitutionalism’ and ‘originalism.’”); David A. Strauss, The Living Constitution 7–49 (2010) (framing his argument in terms of originalism versus living constitutionalism); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 241 (2009) (“For the last several decades, the primary divide in American constitutional theory has been between those theorists who label themselves as ‘originalists’ and those who do not.”); Brannon P. Denning, Brother, Can You Paradigm?, 23 Const. Comment. 81, 81 (2006) (book review) (describing the debate between originalism and non-originalism as having “dominated constitutional theory since at least the mid-twentieth century”); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 38 (Amy Gutmann ed., 1997) (“[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.”); Michael P. Zuckert, The New Rawls and Constitutional Theory: Does It Really Taste That Much Better?, 11 Const. Comment. 227, 236 (1994); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 251–59 (1990) (framing his argument in terms of originalism versus “revisionist” non-originalism).Show More since Paul Brest first coined the term “originalism” in 1980.2 2.Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 204 (1980); see Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 459 (2013) (identifying Brest’s 1980 article as having coined the term “originalism”).Show More In our politics, the originalism/non-originalism dichotomy has been a defining feature of judicial confirmation battles since the Reagan Administration.3 3.Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History 133–89 (2005).Show More The conflict between originalism and non-originalism has accordingly been described as “the great debate” in constitutional theory,4 4.Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1244 (2019).Show More with the future of constitutional law depending on which side emerges triumphant.5 5.See, e.g., Strauss, supra note 1, at 12–18; Tobin Harshaw, Kennedy, Bork and the Politics of Judicial Destruction, N.Y. Times: Opinionator (Aug. 28, 2009, 7:23 PM), https://opinionator.blogs.nytimes.com/2009/08/28/weekend-opinionator-kennedy-bork-and-the-politics-of-judicial-destruction/ [https://perma.cc/3F28-XDP9] (describing Senator Ted Kennedy’s “Robert Bork’s America” speech).Show More This binary and zero-sum way of understanding American constitutional theory has been prominent in recent years, with Donald Trump’s three Supreme Court appointments seen as potentially ushering in a new era of originalist jurisprudence at the Court.6 6.See, e.g., Jess Bravin, Brent Kendall & Jacob Gershman, What Trump Pick Amy Coney Barrett Could Mean for Future of the Supreme Court, Wall St. J. (Sept. 26, 2020, 5:19 PM), https://www.wsj.com/articles/what-trump-pick-amy-coney-barrett-could-mean-for-future-of-the-supreme-court-11601155192 [https://perma.cc/P3R9-AKLS].Show More In both law and politics, then, understanding the debate within American constitutional theory as a battle between originalism and non-originalism—a way of understanding the debate that I will call the “Standard Approach” to constitutional theory—is so common that it is rarely questioned.7 7.But see Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 404 n.120 (2013) (“I wish it went without saying that I do not believe that constitutional theory can simply be reduced to this particular dichotomy between originalists and nonoriginalists.”).Show More

Yet, there is a general sense that, for all its fervor, the argument between originalists and non-originalists has become exhausted.8 8.Jonathan L. Marshfield, Amendment Creep, 115 Mich. L. Rev. 215, 224 (2016) (describing “the tired normative debate regarding the best method of constitutional interpretation”); Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1753 (2015) (describing “increasingly tired, stylized debates of the form ‘Originalism: For or Against?’”); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2351 (2015) (asserting that the debate over originalism is “at a standstill”); Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 Tenn. L. Rev. 789, 794 (2008) (describing “the stalemated (and stale) debates between originalists and nonoriginalists”). Some might disagree and say that the debate remains fruitful, but even if one thinks the current debate is robust, my argument below should prompt a reevaluation of whether the current framing of the debate is the most productive form that the debate could take within constitutional theory, or whether instead we would be better served by reframing the debate in the manner suggested below. See infra Section II.C.Show More While the first few decades of the debate between originalists and non-originalists featured significant advances,9 9.See generally Keith E. Whittington, The New Originalism, 2 Geo. J.L. Pub. Pol’y 599 (2004) (describing the development of originalism in response to non-originalist criticisms in the 1980s and 1990s); see also O’Neill, supra note 3, at 133–216 (same).Show More recent developments have largely consisted—with rare exceptions10 10.William Baude and Stephen Sachs have recently proposed a genuinely novel argument in favor of originalism that relies on legal positivism. See Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. Pub. Pol’y 817, 822–38 (2015); Baude, supra note 8, at 2363–91.Show More—of refinements of each side’s previous arguments.11 11.See Steven D. Smith, That Old-Time Originalism, in The Challenge of Originalism: Theories of Constitutional Interpretation 223, 224–42 (Grant Huscroft & Bradley W. Miller eds., 2011) (describing the increasingly abstruse refinements of originalist theory).Show More Many of these refinements are insightful and important, to be sure, but they have generally failed to change the contours of the debate.12 12.The development that arguably has changed the contours of the debate is the introduction of the interpretation/construction distinction, but that distinction has mostly tended to confuse the debate. See infra Subsection I.B.1.Show More

But what if we have been misunderstanding the nature of the debate within American constitutional theory? What if the fundamental disagreement within American constitutional theory is not between originalists and non-originalists, and our focus on that (though real and important) distinction has obscured our ability to see more profound areas of agreement and disagreement among theorists that transcend the originalism/non-originalism dichotomy? What if, in short, the Standard Approach is impeding constitutional theory?

I want to suggest that this is indeed the case. The debate within American constitutional theory is not, ultimately, about originalism and non-originalism; it is about liberalism. I do not mean “liberalism” as that term is understood in contemporary American political discourse, where the term “liberal” is associated with the Democratic Party and its policy proposals. Liberalism, as I am using the term, refers instead to a politico-theoretical tradition that has its roots in the Renaissance13 13.Anthony Arblaster, The Rise and Decline of Western Liberalism 95 (1984). Some might date the birth of liberalism to the immediate aftermath of the Renaissance, see John Gray, Liberalism, at xi, 9 (2d ed. 1995), though the distinction is somewhat arbitrary.Show More and includes among its foremost theorists figures like John Locke and John Stuart Mill.14 14.Alan Ryan, The Making of Modern Liberalism 21–26 (2012).Show More It could be argued that the American Constitution is a “liberal” constitution in this sense of the word,15 15.Patrick J. Deneen, Why Liberalism Failed 101 (2018); Gray, supra note 13, at 22–24.Show More since it was influenced by Lockean thought,16 16.Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution 3–32 (reprt., 2d Harvest ed. 1991) (1955); Patrick J. Deneen, Better Than Our Philosophy: A Response to Muñoz, Pub. Discourse (Nov. 29, 2012), https://www.thepublicdiscourse.com/2012/11/7156/ [https://perma.cc/VB83-7JVD]. The extent of Locke’s influence on the American Founding is, however, contested. See, e.g., Robert R. Reilly, For God and Country, XVII Claremont Rev. of Books 44, 47 (2017); Nathan Schlueter, Sustainable Liberalism, Pub. Discourse (Dec. 7, 2012), https://www.thepublicdiscourse.com/2012/12/7322/ [https://perma.cc/5YUP-WJQ9].Show More and many in both the Republican and Democratic parties could be considered “liberals” insofar as they implicitly or explicitly begin from certain philosophical premises that are antecedent to their disagreements about things like marginal tax rates.17 17.Deneen, supra note 15, at 43–63.Show More My argument, then, is that the debate within American constitutional theory is, at its deepest level, a debate about political theory.

Specifically, it is a debate about some of the core philosophical propositions associated with the liberal tradition, and although there are undoubtedly many such propositions that are debated within American constitutional theory, the two most salient in that debate are individualism and rationalism. These are contested terms, and I will describe them more fully below.18 18.See infra Section II.A.Show More By “individualism,” I mean the view that the individual has primacy over society, in the sense that the obligation to obey political authority must be grounded in the individual’s choice to submit to that authority.19 19.See Yuval Levin, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left 91–125 (2014); Arblaster, supra note 13, at 21–23.Show More The idea of individualism is well-captured by state-of-nature theorists in the liberal tradition, who derive political principles from a hypothetical world before the advent of government.20 20.See infra Subsection II.A.1.Show More Rationalism is closely related to this view and asserts the primacy of individual reason above all other sources of knowledge, such as tradition or custom.21 21.See infra Subsection II.A.2.Show More In Michael Oakeshott’s famous description, for a rationalist, “there is no opinion, no habit, no belief, nothing so firmly rooted or so widely held that he hesitates to question it and to judge it by what he calls his ‘reason.’”22 22.Michael Oakeshott, Rationalism in Politics, in Rationalism in Politics and Other Essays 5, 6 (1991).Show More These beliefs about the human person are controversial, and they are opposed by philosophical conservatism, among other intellectual traditions.23 23.As discussed below, I will assume, solely for the sake of clarity of presentation, that philosophical conservatism is distinct from liberalism. See infra Section II.A.Show More

The politico-theoretical debates about individualism and rationalism are, I will argue, at the core of the debates within American constitutional theory,24 24.See infra Section II.B.Show More and they reveal agreements and disagreements among theorists that cut across the originalism/non-originalism divide.25 25.See infra Section II.B.Show More Whereas Robert Bork (an originalist) and David Strauss (a non-originalist) might be thought of as polar opposites under the Standard Approach, they in fact share key philosophical premises, and, conversely, Bork and Jack Balkin, despite both being originalists under the Standard Approach, are in fact deeply opposed to each other philosophically.26 26.See infra Section II.C.Show More Recognizing these cross-cutting agreements and disagreements about the premises of constitutional theory will make it more likely that we will be able to identify which theories are sounder than others and provide us with insight into the deeper basis for disagreement among theorists about cases like Obergefell v. Hodges27 27.Obergefell v. Hodges, 576 U.S. 644 (2015); see infra Section II.C.Show More and, though arising in a statutory context, Bostock v. Clayton County.28 28.Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020); see infra Section III.A.Show More

For example, subsurface disagreements about liberalism explain why, at an intuitive level, it seems strange to classify Bork and Balkin as being part of the same school of thought: Bork and Balkin have radically opposed understandings of human reason. Balkin stakes the legitimacy of the Constitution on its ability to reflect human progress through changes in constitutional meaning, a faith in progress that assumes an exalted view of individual reason.29 29.See infra Section II.B.Show More By contrast, Bork’s anti-rationalism comes through in his skepticism of abstract theorizing and attempt to ground his theory in our constitutional tradition.30 30.See infra Section II.B.Show More These philosophical differences lead to an irreconcilable, intra-originalist methodological dispute: Balkin’s rationalistic theory leads him to a methodology that places minimal constraints on judges, while Bork’s anti-rationalism leads him to a methodology with a much more modest judicial role.31 31.See infra Section II.C.Show More Bork and Balkin are ultimately disagreeing about liberal rationalism, and in light of such a profound disagreement, the strangeness of thinking of them as allies becomes understandable.

But it is often difficult to see these unexpected areas of agreement and disagreement among theorists—and the important questions they raise—because of the focus on the originalism/non-originalism dichotomy that results from the Standard Approach. And this is a major reason—perhaps the reason—why constitutional theory has reached an impasse. The Standard Approach, by dividing constitutional theory into originalism and non-originalism, causes us to focus on methodologies—that is, decision procedures for adjudicating constitutional disputes—rather than focusing on the justifications that theorists offer for their methodologies.32 32.See infra Part I.Show More That is not to say that the Standard Approach ignores justifications; nor is it to say that theorists should cease categorizing theories as originalist or non-originalist. But viewing constitutional theory through a methodological lens causes debates about justifications to become distorted, with justifications being viewed as either originalist or non-originalist.33 33.See infra Part I.Show More Perhaps ironically, by focusing on methodologies, the Standard Approach prevents us from seeing the extent to which some theorists disagree about methodologies.34 34.See infra Section II.C.Show More A principal goal of this Article is to demonstrate the problems with the Standard Approach’s emphasis on methodologies and the advantages of a justifications-based approach to constitutional theory.

Indeed, since that is a threshold task, it is where this Article will begin. In Part I, I will describe the Standard Approach to constitutional theory and identify the two main problems with organizing the debate in constitutional theory around methodologies of constitutional adjudication rather than the justifications for those methodologies.

This sets up the argument of Part II, in which I will sketch a justifications-based approach to constitutional theory. Section II.A will provide a fuller account of individualism and rationalism, and Section II.B, in turn, will show that the premises of several major constitutional theories—both originalist and non-originalist—depend on the acceptance or rejection of these two liberal propositions. I will argue that individualism and rationalism are foundational to some constitutional theories, while anti-individualism and anti-rationalism are foundational to others, and the acceptance or rejection of these two liberal propositions, far from tracking the originalism/non-originalism dichotomy, transcends it. Section II.C will pull these strands of argument together and show that the benefit of a justifications-based approach to constitutional theory is that we can identify crucial areas of agreement and disagreement across the originalism/non-originalism divide, which makes it much more likely that theorists will be able to identify the best constitutional theory and better understand doctrinal disagreements.

Finally, Part III will address various objections and counterarguments that are best left for the end, such as the argument that a justifications-based approach would shift constitutional scholarship too far in the direction of political theory and away from doctrine.

American constitutional theory is too complex, and the stakes are too high, for any single idea to serve as a panacea, and I certainly do not claim to be offering one. But the Standard Approach makes progress in constitutional theory less likely, and after forty years, it is time to try a new approach.

  1. * Assistant Professor of Law, the Catholic University of America, Columbus School of Law. I thank Richard Fallon, Jack Goldsmith, Jeff Pojanowski, Nelson Lund, Yuval Levin, Sherif Girgis, Alex Potapov, John Ohlendorf, and Henry Stephan for their comments on earlier drafts. I also thank Bonaventure Chapman, Melissa Lane, Philip Neri Reese, Dominic Verner, and the participants of the Catholic Law Faculty Research Series workshop for helpful conversations or email exchanges. Finally, I thank Steve Young and Tabitha Kempf for outstanding research assistance. ↑
  2. See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice 26 (Apr. 3, 2019) (unpublished manuscript) (on file with author), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2940215 [https://perma.cc/27DK-CPBY] (“normative constitutional theory is currently in a state of dialectical impasse” between originalists and non-originalists); Jack M. Balkin, Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time, 98 Tex. L. Rev. 215, 245 (2019) (describing originalism and living constitutionalism as “the two major schools of modern constitutional theory”); David Singh Grewal & Jedediah Purdy, The Original Theory of Constitutionalism, 127 Yale L.J. 664, 666 (2018) (book review) (“The conflict between various versions of ‘originalism’ and ‘living constitutionalism’ has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating.”); Joel K. Goldstein, History and Constitutional Interpretation: Some Lessons from the Vice Presidency, 69 Ark. L. Rev. 647, 647 (2016) (“In recent times, the principal demarcation in academic discussions of constitutional theory and judicial decision-making separates originalists and living constitutionalists.”); Louis J. Virelli III, Constitutional Traditionalism in the Roberts Court, 73 U. Pitt. L. Rev. 1, 11 (2011) (“Constitutional theory is often described as consisting of two distinct and entrenched camps: ‘living constitutionalism’ and ‘originalism.’”); David A. Strauss, The Living Constitution 7–49 (2010) (framing his argument in terms of originalism versus living constitutionalism); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 241 (2009) (“For the last several decades, the primary divide in American constitutional theory has been between those theorists who label themselves as ‘originalists’ and those who do not.”); Brannon P. Denning, Brother, Can You Paradigm?, 23 Const. Comment. 81, 81 (2006) (book review) (describing the debate between originalism and non-originalism as having “dominated constitutional theory since at least the mid-twentieth century”); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 38 (Amy Gutmann ed., 1997) (“[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.”); Michael P. Zuckert, The New Rawls and Constitutional Theory: Does It Really Taste That Much Better?, 11 Const. Comment. 227, 236 (1994); Robert H. Bork, The Tempting of America: The Political Seduction of the Law 251–59 (1990) (framing his argument in terms of originalism versus “revisionist” non-originalism). ↑
  3. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 204 (1980); see Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 459 (2013) (identifying Brest’s 1980 article as having coined the term “originalism”). ↑
  4. Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History 133–89 (2005). ↑
  5. Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1244 (2019). ↑
  6. See, e.g., Strauss, supra note 1, at 12–18; Tobin Harshaw, Kennedy, Bork and the Politics of Judicial Destruction, N.Y. Times: Opinionator (Aug. 28, 2009, 7:23 PM), https://opinionator.blogs.nytimes.com/2009/08/28/weekend-opinionator-kennedy-bork-and-the-politics-of-judicial-destruction/ [https://perma.cc/3F28-XDP9] (describing Senator Ted Kennedy’s “Robert Bork’s America” speech). ↑
  7. See, e.g., Jess Bravin, Brent Kendall & Jacob Gershman, What Trump Pick Amy Coney Barrett Could Mean for Future of the Supreme Court, Wall St. J. (Sept. 26, 2020, 5:19 PM), https://www.wsj.com/articles/what-trump-pick-amy-coney-barrett-could-mean-for-future-of-the-supreme-court-11601155192 [https://perma.cc/P3R9-AKLS]. ↑
  8. But see Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 404 n.120 (2013) (“I wish it went without saying that I do not believe that constitutional theory can simply be reduced to this particular dichotomy between originalists and nonoriginalists.”). ↑
  9. Jonathan L. Marshfield, Amendment Creep, 115 Mich. L. Rev. 215, 224 (2016) (describing “the tired normative debate regarding the best method of constitutional interpretation”); Richard H. Fallon, Jr., The Many and Varied Roles of History in Constitutional Adjudication, 90 Notre Dame L. Rev. 1753, 1753 (2015) (describing “increasingly tired, stylized debates of the form ‘Originalism: For or Against?’”); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2351 (2015) (asserting that the debate over originalism is “at a standstill”); Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v. Heller, 75 Tenn. L. Rev. 789, 794 (2008) (describing “the stalemated (and stale) debates between originalists and nonoriginalists”). Some might disagree and say that the debate remains fruitful, but even if one thinks the current debate is robust, my argument below should prompt a reevaluation of whether the current framing of the debate is the most productive form that the debate could take within constitutional theory, or whether instead we would be better served by reframing the debate in the manner suggested below. See infra Section II.C. ↑
  10. See generally Keith E. Whittington, The New Originalism, 2 Geo. J.L. Pub. Pol’y 599 (2004) (describing the development of originalism in response to non-originalist criticisms in the 1980s and 1990s); see also O’Neill, supra note 3, at 133–216 (same). ↑
  11. William Baude and Stephen Sachs have recently proposed a genuinely novel argument in favor of originalism that relies on legal positivism. See Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. Pub. Pol’y 817, 822–38 (2015); Baude, supra note 8, at 2363–91. ↑
  12. See Steven D. Smith, That Old-Time Originalism, in The Challenge of Originalism: Theories of Constitutional Interpretation 223, 224–42 (Grant Huscroft & Bradley W. Miller eds., 2011) (describing the increasingly abstruse refinements of originalist theory). ↑
  13. The development that arguably has changed the contours of the debate is the introduction of the interpretation/construction distinction, but that distinction has mostly tended to confuse the debate. See infra Subsection I.B.1. ↑
  14. Anthony Arblaster, The Rise and Decline of Western Liberalism 95 (1984). Some might date the birth of liberalism to the immediate aftermath of the Renaissance, see John Gray, Liberalism, at xi, 9 (2d ed. 1995), though the distinction is somewhat arbitrary. ↑
  15. Alan Ryan, The Making of Modern Liberalism 21–26 (2012). ↑
  16. Patrick J. Deneen, Why Liberalism Failed 101 (2018); Gray, supra note 13, at 22–24. ↑
  17. Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution 3–32 (reprt., 2d Harvest ed. 1991) (1955); Patrick J. Deneen, Better Than Our Philosophy: A Response to Muñoz, Pub. Discourse (Nov. 29, 2012), https://www.thepublicdiscourse.com/2012/11/7156/ [https://perma.cc/VB83-7JVD]. The extent of Locke’s influence on the American Founding is, however, contested. See, e.g., Robert R. Reilly, For God and Country, XVII Claremont Rev. of Books 44, 47 (2017); Nathan Schlueter, Sustainable Liberalism, Pub. Discourse (Dec. 7, 2012), https://www.thepublicdiscourse.com/2012/12/7322/ [https://perma.cc/5YUP-WJQ9]. ↑
  18. Deneen, supra note 15, at 43–63. ↑
  19. See infra Section II.A. ↑
  20. See Yuval Levin, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left 91–125 (2014); Arblaster, supra note 13, at 21–23. ↑
  21. See infra Subsection II.A.1. ↑
  22. See infra Subsection II.A.2. ↑
  23. Michael Oakeshott, Rationalism in Politics, in Rationalism in Politics and Other Essays 5, 6 (1991). ↑
  24. As discussed below, I will assume, solely for the sake of clarity of presentation, that philosophical conservatism is distinct from liberalism. See infra Section II.A. ↑
  25. See infra Section II.B. ↑
  26. See infra Section II.B. ↑
  27. See infra Section II.C. ↑
  28. Obergefell v. Hodges, 576 U.S. 644 (2015); see infra Section II.C. ↑
  29. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020); see infra Section III.A. ↑
  30. See infra Section II.B. ↑
  31. See infra Section II.B. ↑
  32. See infra Section II.C. ↑
  33. See infra Part I. ↑
  34. See infra Part I. ↑
  35. See infra Section II.C. ↑
  36. See David A. Strauss, What Is Constitutional Theory?, 87 Calif. L. Rev. 581, 582–83 (1999); Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 Calif. L. Rev. 535, 537 (1999); Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1, 1–4 (1998). Although “adjudication” has a distinctively judicial connotation, I do not intend to exclude methodologies describing how the political branches should interpret the Constitution. See, e.g., Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1, 9–13 (2016); see generally Joel Alicea, Stare Decisis in an Originalist Congress, 35 Harv. J.L. Pub. Pol’y 797 (2012). ↑
  37. See, e.g., Lawrence Lessig, The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 85 Geo. L.J. 1837, 1838–39 (1997). ↑
  38. I use the phrase “constitutional adjudication” rather than “constitutional interpretation” because, as discussed below, see infra Subsection I.B.1, some scholars have proposed distinguishing between constitutional “interpretation” and constitutional “construction.” By “adjudication,” I mean to encompass both “interpretation” and “construction,” as these theorists have used those terms. ↑
  39. Andrew Coan, The Foundations of Constitutional Theory, 2017 Wis. L. Rev. 833, 835–36 (2017) (emphasis omitted). It is also consistent with how other theorists think about the elements of a constitutional theory. See Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court 132–33 (2018) (distinguishing between “methodological premises or commitments” that “seek to specify the criteria of decision that the Justices should, or at least legitimately can, apply” and “defense[s] on partly normative grounds” that “the embrace of an interpretive methodology requires”); Randy J. Kozel, Settled Versus Right: A Theory of Precedent 64 (2017) (similar). But see Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. (forthcoming 2022) (arguing that originalism should not be understood as a decision procedure). ↑
  40. James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893). ↑
  41. Id. ↑
  42. Id. at 134–35. ↑
  43. See supra notes 1–2 and accompanying text. ↑
  44. Coan, supra note 38, at 835 (noting that scholars have generally tended to focus on methodologies over justifications). ↑
  45. Solum, supra note 4, at 1265–66. ↑
  46. See, e.g., Larry Alexander, Simple-Minded Originalism, in The Challenge of Originalism, supra note 11, at 87; Larry Alexander & Saikrishna Prakash, “Is That English You’re Speaking?” Why Intention Free Interpretation is an Impossibility, 41 San Diego L. Rev. 967, 972, 982 (2004). ↑
  47. See, e.g., Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1132 (2003); Scalia, supra note 1, at 38. ↑
  48. See, e.g., John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 Nw. U. L. Rev. 803, 829 (2009); Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 5–8 (2001). ↑
  49. See, e.g., Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave Maria L. Rev. 1, 5–8 (2007); Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment. 289, 289–98 (2005). ↑
  50. See, e.g., Strauss, supra note 1, at 33–40; David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 884–91 (1996). ↑
  51. See, e.g., Ronald Dworkin, Law’s Empire 225–75 (1986). ↑
  52. See, e.g., Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1758–62 (1994); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1209–23, 1240–46 (1987). ↑
  53. Solum, supra note 2, at 460–61; see generally Solum, supra note 1, at 139. Solum also relies on the “Fixation Thesis” to define originalism, but as discussed below, that principle is not what primarily divides originalists from non-originalists. See infra Subsection I.B.1. ↑
  54. See Griffin, supra note 51, at 1762–64. ↑
  55. Solum, supra note 2, at 460–61; see also Solum, supra note 1, at 105–28. ↑
  56. Solum, supra note 2, at 472–73; Solum, supra note 1, at 26–30. ↑
  57. Coan, supra note 38, at 882–84. ↑
  58. See generally Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999). For the history of the distinction generally and within originalism specifically, see Solum, supra note 2, at 467–69; Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 10–13 (2018). ↑
  59. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95, 100 (2010). Although Solum has been the principal developer of the interpretation/construction distinction, it was introduced into constitutional theory by Professor Whittington, see Barnett & Bernick, supra note 57, at 10–11, whose understanding of the distinction was somewhat different from Solum’s. ↑
  60. Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 502 (2013). ↑
  61. Solum, supra note 58, at 99. ↑
  62. Id. at 103. ↑
  63. Id. at 104–06. ↑
  64. Id. at 103 n.19. ↑
  65. Id. at 104–05. ↑
  66. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 13–15 (2012); Gary Lawson, Dead Document Walking, 92 B.U. L. Rev. 1225, 1231–36 (2012); John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 772–80 (2009); see also Smith, supra note 11, at 227–42 (increasingly abstract distinctions within originalism take away from the attractive simplicity of originalism). ↑
  67. See generally Barnett & Bernick, supra note 57 (tracing the history of these concepts within originalism); Jack M. Balkin, Living Originalism (2011); Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999); Whittington, supra note 57. ↑
  68. Solum, supra note 58, at 116–17; see also Barnett & Bernick, supra note 57, at 14. ↑
  69. Solum, supra note 58, at 116–17; see also Barnett & Bernick, supra note 57, at 14. ↑
  70. Solum, supra note 1, at 16; Solum, supra note 2, at 472–73. Barnett has recently argued that the range of permissible theories of constitutional construction is narrower than he had previously recognized. See Barnett & Bernick, supra note 57, at 14 & n.58. But Barnett’s view has not been broadly accepted by other originalists (at least not yet), so as things now stand, my description of the upshot of the interpretation/construction distinction remains true. ↑
  71. Solum, supra note 1, at 16; see also Sachs, supra note 10, at 831–32 (”Most everyone accepts that some kind of original meaning is legally relevant sometimes.”); Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 32–33 (2009). But see Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 62–70 (2015) (arguing that some non-originalist theories deny the Fixation Thesis). ↑
  72. Barnett & Bernick, supra note 57, at 15–17; see Solum, supra note 2, at 499–523 (arguing that the construction zone is substantial). ↑
  73. Solum, supra note 58, at 117. As noted above, Solum seems to have retreated from that view in later writings. See Solum, supra note 4, at 1284. ↑
  74. Peter J. Smith, How Different Are Originalism and Non-Originalism?, 62 Hastings L.J. 707, 723 & n.94 (2011) (collecting sources making similar observations); see also Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 750 (2011) (modern originalism mirrors non-originalism in practice). ↑
  75. See, e.g., Joel Alicea, Originalism and the Rule of the Dead, Nat’l Affs., Spring 2015, at 149, https://www.nationalaffairs.com/publications/detail/originalism-and-the-rule-of-the-dead [https://perma.cc/9F5A-M77L]; Smith, supra note 11, at 230–33; Nelson Lund, Living Originalism: The Magical Mystery Tour, 3 Tex. A&M L. Rev. 31, 43 (2015). ↑
  76. Colby & Smith, supra note 1, at 258 (2009). ↑
  77. Balkin, supra note 66. I will describe Balkin’s theory in more detail below. See infra Subsections II.B.1–2. ↑
  78. Balkin, supra note 66, at 20. ↑
  79. Id. at 35–39, 282. ↑
  80. Id. at 21–34, 282. ↑
  81. Balkin’s thin view of constitutional interpretation is dictated by the justification he offers for his theory. See infra Section II.C. ↑
  82. Balkin, supra note 66, at 12–49; Solum, supra note 4, at 1282–83; Lund, supra note 74, at 32–36. ↑
  83. Roe v. Wade, 410 U.S. 113 (1973); see generally Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 (2007) (arguing that the right to abortion is consistent with the original meaning of the Constitution). ↑
  84. Wickard v. Filburn, 317 U.S. 111 (1942); see Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 34–35 (2010); Balkin, supra note 66, at 164–65. ↑
  85. See United States v. Lopez, 514 U.S. 549, 584–602 (1995) (Thomas, J., concurring) (arguing that Wickard has no basis in the original meaning of the Constitution); Planned Parenthood v. Casey, 505 U.S. 833, 979–1002 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part) (arguing that Roe has no basis in the original meaning of the Constitution). ↑
  86. Solum, supra note 4, at 1282–84. ↑
  87. Solum, supra note 1, at 20 n.55. ↑
  88. See Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156, 165–66 (2017); Smith, supra note 11, at 230–33. ↑
  89. Solum, supra note 4, at 1254. ↑
  90. Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism, supra note 11, at 12, 32. ↑
  91. Though some have tried. See supra note 65. ↑
  92. See, e.g., Alicea, supra note 74, at 154–61. ↑
  93. Compare Randy E. Barnett, Am I “Imperiling” Originalism? A Reply to Joel Alicea, Volokh Conspiracy (Mar. 30, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/30/am-i-imperiling-originalism/ [https://perma.cc/Q4BU-MJ5Z] (responding to Alicea’s article which criticizes Barnett’s view of originalism), with Joel Alicea, “Yes, You are Imperiling Originalism:” A Response to Professor Barnett, Volokh Conspiracy (Apr. 4, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/04/yes-you-are-imperiling-originalism-a-response-to-professor-barnett/ [https://perma.cc/25S6-RE75] (refuting perceived similarities between his view of originalism and Barnett’s). ↑
  94. See Solum, supra note 4, at 1244–48. ↑
  95. See id. at 1247–48. ↑
  96. See Smith, supra note 73, at 729–30. ↑
  97. See supra note 35. ↑
  98. Fallon, supra note 38, at 136–37. ↑
  99. Id. at 137. ↑
  100. Id. at 142–48. ↑
  101. See, e.g., Berman, supra note 70, at 4–8; Mark. S. Stein, Originalism and Original Exclusions, 98 Ky. L.J. 397, 397–406 (2009–2010). ↑
  102. See, e.g., Whittington, supra note 9, at 599. ↑
  103. Of course, as pluralist theories of constitutional adjudication like Fallon’s demonstrate, the question of whether there is a correct methodology of constitutional adjudication is distinct from the question of whether there are correct (or at least privileged) modalities of constitutional adjudication, though one must answer the latter question to determine which methodology is correct. See Fallon, supra note 51, at 1209–17 (arguing, in the context of an article justifying a pluralist methodology, that originalism errs by privileging text and history over other modalities). ↑
  104. Some theorists would answer “no.” See, e.g., Richard A. Posner, Legal Pragmatism Defended, 71 U. Chi. L. Rev. 683, 683–84 (2004); see also Solum, supra note 1, at 122–26 (describing theories that reject a single methodology of adjudication). ↑
  105. Even if I am wrong about this, the principal goal of constitutional theorists is, at the very least, to describe and justify the best subset of methodologies of constitutional adjudication, even if there is no single correct theory. My argument in the rest of this Section would remain valid under this more modest description of constitutional theory’s goal. ↑
  106. Kozel, supra note 38, at 64 (“Normative commitments are the paths to interpretive methodology.”). ↑
  107. See John Rawls, Political Liberalism 133–72 (expanded ed. 1996). I thank John Ohlendorf for pointing out this important objection. ↑
  108. See Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1128 (1998). ↑
  109. See infra Subsection II.B.1. ↑
  110. See supra Subsection I.B.1. ↑
  111. See John D. Arras, Methods in Bioethics: The Way We Reason Now 192–96 (James Childress & Matthew Adams eds., 2017) (making a similar argument about the possibility of an overlapping consensus in bioethics). ↑
  112. John Rawls, A Theory of Justice 17–18, 42–45 (rev. ed. 1999). ↑
  113. Id. at 18. ↑
  114. See Fallon, supra note 38, at 142–48; Richard H. Fallon, Jr., Arguing in Good Faith About the Constitution: Ideology, Methodology, and Reflective Equilibrium, 84 U. Chi. L. Rev. 123, 139–44 (2017); Fallon, supra note 35, at 576 n.224. ↑
  115. See Solum, supra note 1, at 30–35. Solum, for instance, employs it only for justifying the Constraint Principle, and he does not use canonical cases as part of his equilibrium analysis. See id. at 83–86. ↑
  116. Arras, supra note 110, at 197–200. This implicates deep questions about how we know whether something is true, which is beyond the scope of this Article. ↑
  117. Id. at 192–96. I understand Solum to be making the same point. See Solum, supra note 1, at 33–35. ↑
  118. This was Rawls’s aim, Arras, supra note 110, at 194–95, and it appears to be Solum’s as well. See Solum, supra note 1, at 34–35. ↑
  119. See, e.g., John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 1–115 (2013); Strauss, supra note 1, at 1–50; Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 1–88 (2004); Whittington, supra note 66, at 47–159. ↑
  120. See, e.g., Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482 (2007); Fallon, supra note 38, at 1–19; Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787 (2005). ↑
  121. Smith, supra note 11, at 227–30 (warning of the dangers of increasing levels of abstraction in constitutional theory); see also Bork, supra note 1, at 133–35 (same). ↑
  122. For example, although I describe Locke as an individualist, some would disagree with that description. See Ruth W. Grant, John Locke on Custom’s Power and Reason’s Authority, 74 Rev. Pol. 607, 608 n.2 (2012) (cataloguing contrasting views about whether Lockeanism is individualistic). And while I put forward an interpretation of Mill, “what the liberalism is that [Mill] defends and how [he] defends it remain matters of controversy.” Ryan, supra note 14, at 292. ↑
  123. Ryan, supra note 14, at 23. ↑
  124. Id. at 21; see also Jeremy Waldron, Theoretical Foundations of Liberalism, 37 Phil. Q. 127, 127–28 (1987) (the term “liberalism” includes a range of views without “any set of doctrines or principles that are held in common”). ↑
  125. Assuming, that is, that I have successfully shown that justifications, rather than methodologies, are the fundamental areas of disagreement in constitutional theory. See supra Subsection I.B.2. ↑
  126. This is partly because conservatism is itself a contested concept. See, e.g., Samuel P. Huntington, Conservatism as an Ideology, 51 Am. Pol. Sci. Rev. 454, 454–61 (1957). ↑
  127. See, e.g., Levin, supra note 19, at xvi; Pierre Manent, An Intellectual History of Liberalism 80 (Rebecca Balinski trans., 1994); Gray, supra note 13, at 20; Guido de Ruggiero, The History of European Liberalism 78–84 (R.G. Collingwood trans., Beacon Press 1959) (1927). ↑
  128. See generally Sanford Lakoff, Tocqueville, Burke, and the Origins of Liberal Conservatism, 60 Rev. of Pol. 435, 442–46 (1998). ↑
  129. Ryan, supra note 14, at 24. ↑
  130. Roger Scruton, The Meaning of Conservatism 182–94 (3d ed. Palgrave 2001) (1980). ↑
  131. See, e.g., Deneen, supra note 15, at 1–42; Yuval Levin, After Progressivism, First Things (May 2012), https://www.firstthings.com/article/2012/05/after-progressivism [https://perma.cc/U45J-Y2S7]. ↑
  132. Levin, supra note 130. ↑
  133. Waldron, supra note 123, at 140 (“[L]iberalism is not a monolithic tradition.”). ↑
  134. Gray, supra note 13, at xiii; see also D.J. Manning, Liberalism 13 (1976) (noting persistent themes throughout the differing strains of liberalism). ↑
  135. Ryan, supra note 14, at 23–40. So did Waldron. See Waldron, supra note 123, at 129–40. ↑
  136. Arblaster, supra note 13, at 13 (emphasis omitted). ↑
  137. My analysis in this Article was developed independently of Coan’s and differs from his important project in several ways. To take just two examples: (1) he does not argue against the Standard Approach, choosing instead to argue in favor of more attention to justifications; and (2) he organizes justifications based on types of arguments (e.g., whether a justification is procedural in nature) rather than on whether theorists agree or disagree about particular substantive claims, such as individualism or rationalism. ↑
  138. See Coan, supra note 38, at 840. ↑
  139. Arblaster, supra note 13, at 15. ↑
  140. See id. at 15–54; Gray, supra note 13, at xii; see also Deneen, supra note 15, at 31–34, 43–63; Kenneth Minogue, The Liberal Mind 46–52 (Liberty Fund, Inc. 2000) (1963); Scruton, supra note 129, at 64–66; C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke 1 (1962). ↑
  141. John Finnis, Natural Law & Natural Rights 198–210 (2d ed. 2011) (rights-talk, though modern, is simply a useful way of describing the demands of justice in the natural-law tradition); see also Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World 115–16 (2002) (noting that classical lawyers saw justice as the giving of rights due); Gray, supra note 13, at 6. ↑
  142. Arblaster, supra note 13, at 21–23. ↑
  143. Id. at 40–41. ↑
  144. Levin, supra note 19, at 91–125. ↑
  145. John Locke, The Second Treatise of Government, in The Second Treatise of Government and a Letter Concerning Toleration 2–7 (Tom Crawford ed., Dover Publ’ns, Inc. 2002) (1946); see also Levin, supra note 19, at 44–52; Thomas Paine, Rights of Man, in Collected Writings 464–65 (Eric Foner ed., 1995). ↑
  146. Locke, supra note 144, at 2–10; see also L.T. Hobhouse, Liberalism 20–21 (1911). Locke’s description of the state of nature is complicated, see Macpherson, supra note 139, at 240–41, and I have oversimplified for present purposes. ↑
  147. Jean-Jacques Rousseau, Discourse on the Origin and Foundation of Inequality Among Men, or Second Discourse, in Rousseau: The Discourses and Other Early Political Writings 115, 145–46, 149 (Victor Gourevitch ed. & trans., 1997). ↑
  148. Locke, supra note 144, at 35–38; Manent, supra note 126, at 44; Manning, supra note 133, at 121. Nonetheless, Deneen has argued that Locke’s conception of familial relations is individualistic and anti-social. See, e.g., Deneen, supra note 15, at 32–33. ↑
  149. Manent, supra note 126, at 42. ↑
  150. Id. at 48. ↑
  151. Id.; Locke, supra note 144, at 8–10, 44. ↑
  152. Locke, supra note 144, at 44–45; Gray, supra note 13, at 13–14. ↑
  153. Locke, supra note 144, at 44. ↑
  154. Id. at 57–59. ↑
  155. Rawls, supra note 111, at 10. ↑
  156. Id. at 10–19, 118–30; Ryan, supra note 14, at 509. ↑
  157. On the individualism of Rawls’s theory, see Michael J. Sandel, Liberalism and the Limits of Justice 59–65 (1982). ↑
  158. Gray, supra note 13, at 30; Hobhouse, supra note 145, at 43. ↑
  159. Ryan, supra note 14, at 318; Manning, supra note 133, at 13. ↑
  160. Ryan, supra note 14, at 318; John Stuart Mill, On Liberty, in On Liberty and Other Writings 1, 75 (Stefan Collini ed., 1989). ↑
  161. See Mill, supra note 159, at 14 (“I regard utility as the ultimate appeal on all ethical questions.”); Ryan, supra note 14, at 263–64. ↑
  162. See Ryan, supra note 14, at 262 (observing that Mill “advanced a much enlarged role for government and public opinion alike” with respect to enforcing parental responsibilities); Gray, supra note 13, at 29–30; Hobhouse, supra note 145, at 25–26. ↑
  163. Arblaster, supra note 13, at 41–43. ↑
  164. Mill, supra note 159, at 15. ↑
  165. Id. at 5; see also id. at 8–9 (describing the tyranny of public opinion). ↑
  166. See infra Subsection II.A.2. There is, therefore, a close connection between Mill’s individualism and rationalism. ↑
  167. Mill, supra note 159, at 13. ↑
  168. Id. ↑
  169. Ryan, supra note 14, at 362. ↑
  170. Id.; Mill, supra note 159, at 13. One might object that I have defined liberalism solely based on the English liberal tradition and that other liberal traditions, such as the French tradition, are not as individualistic. See Larry Siedentop, Two Liberal Traditions, in The Idea of Freedom: Essays in Honour of Isaiah Berlin 153, 153–56 (Alan Ryan ed., 1979). Such a clean division between English and French liberalism is contested. See Gray, supra note 13, at 22–23; Ruggiero, supra note 126, at 347. In any event, nothing important would change about my argument if the reader chose to substitute “English liberalism” for “liberalism” throughout this text. ↑
  171. Mill, supra note 159, at 56–74 (arguing for the primacy of individuality); see also Gray, supra note 13, at 29 (In On Liberty, “Mill’s commitment to liberal individualism is much more prominent than his commitment to Utilitarian social reform.”); Macpherson, supra note 139, at 2 (describing the utilitarian doctrine as a restatement of individualist principles); Hobhouse, supra note 145, at 112, 120. ↑
  172. Deneen, supra note 15, at 46–47; see also id. at 16–18, 43–63 (arguing that individualism and statism reinforce each other). Others have made similar arguments or observations, with Macpherson’s argument being among the most detailed. See Macpherson, supra note 139, at 255–57 (arguing that individualism and collectivism reinforce each other and that Locke’s individualism requires the role of the state); see also Scruton, supra note 129, at 38–41; Manning, supra note 133, at 53. That being said, I do not mean to suggest that the transition from state-of-nature theories to Mill is seamless; they differ in important ways. See, e.g., Ryan, supra note 14, at 310–11; Gray, supra note 13, at 29–30. I am only arguing that they share a commitment to individualism. ↑
  173. Jed Rubenfeld has noted this connection between individualism and the severing of intergenerational relations, though he seems to think that the breakdown in intergenerational relations precedes individualism rather than vice-versa. See Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government 22–26, 68–70 (2001). ↑
  174. Locke, supra note 144, at 23–35. Although he was writing about democracy, not liberalism per se, Tocqueville’s description of the way in which individualism leads to a severing of relationships between generations is applicable here. See 2 Alexis de Tocqueville, Democracy in America 99 (Phillips Bradley ed., Henry Reeve trans., Alfred A. Knopf, Inc. 1945) (“Thus not only does democracy make every man forget his ancestors, but it hides his descendants and separates his contemporaries from him . . . .”). ↑
  175. Locke, supra note 144, at 54; see also Paine, supra note 144, at 438–41 (arguing against intergenerational authority). ↑
  176. Mill, supra note 159, at 56–74. ↑
  177. Scruton, supra note 129, at 10; see also Gray, supra note 13, at 80 (conservatives “mostly repudiated the abstract individualism they found in liberal thought and rejected liberal ideas of civil society in favour of conceptions of moral community”). ↑
  178. See Levin, supra note 19, at 101–08 (arguing that Burke’s account of political authority was not based on consent). ↑
  179. Edmund Burke, Reflections on the Revolution in France 52 (J.G.A. Pocock ed., Hackett Publ’g Co. 1987) (1789–1790). ↑
  180. Levin, supra note 19, at 54. ↑
  181. Scruton, supra note 129, at 19–21 (arguing that conservatism rejects social-contract theory). ↑
  182. Burke, supra note 178, at 52; see also Levin, supra note 19, at 101–08 (describing Burke’s objections to the liberal notion of a state of nature); Scruton, supra note 129, at 19–21 (arguing against the state of nature hypothetical). ↑
  183. Thomas Aquinas, De Regno, in St Thomas Aquinas: Political Writings 5, 5–6 (R.W. Dyson ed. & trans., Cambridge Univ. Press 2002) (Bk. I, ch. 1); see also Aristotle, The Politics, in Aristotle: The Politics and the Constitution of Athens 13 (Stephen Everson ed., B. Jowett trans., 1996) (Bk. I.2) (“Hence it is evident that the state is a creation of nature, and that man is by nature a political animal.”); see also Deneen, supra note 15, at 34–35 (describing premodern political thought); Arblaster, supra note 13, at 22–23. For an insightful and somewhat revisionist discussion of Burke’s importance to natural-law thinking, see Matthew D. Wright, A Vindication of Politics: On the Common Good and Human Flourishing 120–58 (2019). But see Huntington, supra note 125, at 459 n.6 (asserting that “any theory of natural law as a set of transcendent and universal moral principles is inherently nonconservative”); see also 1 F.A. Hayek, The Fatal Conceit: The Errors of Socialism 66–88 (W.W. Bartley III ed., Univ. of Chicago Press 1991) (1988). ↑
  184. Levin, supra note 19, at 101–09. ↑
  185. Scruton, supra note 129, at 45–48; 1 G.K. Chesterton, Orthodoxy, in The Collected Works of G.K. Chesterton 251 (David Dooley ed., 1986) (1908) (“We will have the dead at our councils. The ancient Greeks voted by stones; these shall vote by tombstones.”). ↑
  186. Burke, supra note 178, at 84. ↑
  187. Id. at 85. ↑
  188. Locke, supra note 144, at 23–35. ↑
  189. Burke, supra note 178, at 30; see also id. at 27–33; Scruton, supra note 129, at 21–24, 129–31. ↑
  190. Levin, supra note 19, at 214–19. ↑
  191. Locke, supra note 144, at 54–57; see also Levin, supra note 19, at 95–96 (describing this feature of Paine’s theory). ↑
  192. Burke, supra note 178, at 29–31. ↑
  193. Arblaster, supra note 13, at 23. ↑
  194. See Minogue, supra note 139, at 56–59 (stating that there is no necessary connection between liberalism and rationalism (what he calls “libertarianism”), while noting that it is nonetheless a key component of the liberal tradition). Ryan, for instance, implies that the classical liberal tradition associated with Locke takes a more modest view of human reason, see Ryan, supra note 14, at 24–26, and Arblaster points out that liberalism has always contained more- and less-rationalist veins, see Arblaster, supra note 13, at 79–84. ↑
  195. See Minogue, supra note 139, at 27 (drawing this distinction). ↑
  196. See Peter Markie, Rationalism vs. Empiricism, Stan. Encyclopedia of Phil. (July 6, 2017), https://plato.stanford.edu/entries/rationalism-empiricism/#Bib [https://perma.cc/9R8K-YFPE]; see also Adam Adatto Sandel, The Place of Prejudice: A Case for Reasoning Within the World 24–33 (2014) (describing Descartes as a rationalist in the sense that I invoke here). ↑
  197. Oakeshott, supra note 22, at 5–6. ↑
  198. Minogue, supra note 139, at 54–55; Hayek, supra note 182, at 48–52. A similar description of rationalism is found in then-Pope Benedict XVI’s Regensburg Address. See generally Pope Benedict XVI, Faith, Reason, and the University, in A Reason Open to God 7, 7–19 (J. Steven Brown ed., 2013). ↑
  199. Mill, supra note 159, at 23. ↑
  200. Id. ↑
  201. Id. at 58. ↑
  202. Id. (emphasis added). ↑
  203. Id. at 59. ↑
  204. Id. at 14. ↑
  205. Id. at 23, 45; see also Manning, supra note 133, at 53–55. ↑
  206. Ryan, supra note 14, at 267. ↑
  207. Mill, supra note 159, at 70. ↑
  208. Id.; see also Deneen, supra note 15, at 143–48 (describing Mill’s hostility toward custom and tradition). ↑
  209. Minogue, supra note 139, at 54-55 (describing the union of rationalism—what he calls “libertarianism”—and a progressive view of history); Hobhouse, supra note 145, at 49–50, 53. ↑
  210. See John Dewey, The Influence of Darwin on Philosophy, in The Influence of Darwin on Philosophy and Other Essays in Contemporary Thought 1, 9–19 (1910); see also Bradley C. S. Watson, Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence 55–109 (2009); Gray, supra note 13, at 88 (recognizing the connection between Mill’s anthropology and theory of history). But see Ryan, supra note 14, at 318 (arguing that Mill had a less optimistic view of human nature than Dewey). ↑
  211. A very similar dynamic can be seen in Paine’s writings. See Levin, supra note 19, at 150–68 (describing the rationalism of Paine). For a discussion of this view of the relationship between history and progress, see generally Herbert Butterfield, The Whig Interpretation of History (photo. reprt. 1978) (1931). ↑
  212. Arblaster, supra note 13, at 35–37 (describing two strands of liberal tradition regarding human reason, with one being more rationalist); see also Ryan, supra note 14, at 25–26 (same). Hayek, for example, argues that Locke does not subscribe to this strong form of rationalism. See Hayek, supra note 182, at 49. But see Grant, supra note 121, at 616–21, 623 (describing Locke’s rationalism). As noted above, one could argue that Burke, Hayek, and Tocqueville are part of the liberal tradition, in which case they would be examples of liberal theories that reject rationalism. ↑
  213. See Levin, supra note 19, at 150–68 (describing Paine’s rationalism). ↑
  214. Grant, supra note 121, at 616–21, 623 (describing Locke’s rationalism); see also John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the “Two Treatises of Government” 116 (1969) (describing Locke’s move from the state of nature to political society as “rationalistic and abstract”). ↑
  215. See Deneen, supra note 15, at 72–77 (describing the state of nature as being divorced from tradition and custom); Grant, supra note 121, at 610–16 (describing Locke’s view on the influence of custom, especially within a family). ↑
  216. Rawls, supra note 111, at 118–19. ↑
  217. Waldron, supra note 123, at 135; see also id. at 149–50 (explicitly distinguishing liberalism and conservatism on this basis); Deneen, supra note 15, at 25–27 (describing liberalism as a being defined in part by its disregard for culture and tradition). ↑
  218. Arblaster, supra note 13, at 79–84. ↑
  219. Scruton, supra note 129, at 31. See also Minogue, supra note 139, at 53. Hayek articulates a similar idea in his landmark essay on the problem of knowledge. See generally F.A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519 (1945). ↑
  220. Scruton, supra note 129, at 31–32. ↑
  221. Hayek, supra note 182, at 23. ↑
  222. Id. ↑
  223. Burke, supra note 178, at 76. ↑
  224. Id. at 35. ↑
  225. Id. at 33. ↑
  226.  Id. at 31–36; see also Levin, supra note 19, at 128–50. Deneen argues that Burkean conservatism is properly viewed as the antithesis of Millian liberalism. See Deneen, supra note 15, at 143–48. ↑
  227. Levin, supra note 19, at 134. ↑
  228. Minogue, supra note 139, at 30, 35–38. ↑
  229. As we will see, David Strauss’s constitutional theory is individualistic but purports to reject rationalism. See infra Section II.B. ↑
  230. Alicea, supra note 74, at 151–54; see also Rubenfeld, supra note 172, at 45–73. That is why rejecting any form of intergenerational authority necessarily requires rejecting the authority of the American Constitution, no matter how interpreted. See Louis Michael Seidman, On Constitutional Disobedience 11–28 (2012); McConnell, supra note 107, at 1127. For a discussion of the role of rationalism in British constitutional culture, see generally Graham Gee & Grégoire Webber, Rationalism in Public Law, 76 Modern L. Rev. 708 (2013). ↑
  231. McConnell, supra note 107, at 1128. ↑
  232. Rubenfeld, supra note 172, at 43 (“[T]o an extraordinary extent, the Jeffersonian thesis [that the earth belongs to the living] remains the dominant starting point for modern democratic and constitutional theory.”). ↑
  233. Barnett, supra note 118, at 9–10. ↑
  234. Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People 69–73 (2016). ↑
  235. Barnett, supra note 118, at 11. ↑
  236. Id. at 14–25. ↑
  237. Id. at 14–19, 22–25. ↑
  238. Id. at 19–22. ↑
  239. By legitimacy, Barnett means legitimacy as a moral concept. See Fallon, supra note 119, at 1796–1801. ↑
  240. Barnett, supra note 233, at 74. Rawls offered a similar principle of legitimacy. See Rawls, supra note 106, at 217. ↑
  241. Barnett, supra note 118, at 44. ↑
  242. Id. ↑
  243. Id. at 100–13. ↑
  244. Barnett’s justification has undergone refinement over the years and now stretches across three books. My description of his theory is an attempt to synthesize his refinements in his later works with his earlier writings. ↑
  245. Barnett, supra note 118, at 19–22. ↑
  246. Id. at 114 (“[W]e are bound to respect the original meaning of a text, not by the dead hand of the past, but because we today—right here, right now—profess our commitment to this written Constitution.”). ↑
  247. Mill, supra note 159, at 14. ↑
  248. Balkin, supra note 66, at 59–61, 66–67, 76–77, 93, 114. Balkin also discusses “basic law,” but I focus on the “higher law” and “our law” components of his theory because they are the most relevant to my point here. ↑
  249. Id. at 62. ↑
  250. Id. at 63. ↑
  251. Id. at 62–63. ↑
  252. Id. at 62, 78–79. ↑
  253. Id. at 64. ↑
  254. Id. at 29–34, 282, 300–19; see also Solum, supra note 4, at 1282–83; Lund, supra note 74, at 32–36. ↑
  255. Balkin, supra note 66, at 56–57, 63. In this limited sense, Balkin disagrees with Strauss, see id. at 49–58, but both theories are ultimately grounded in individualism. ↑
  256. Id. at 56–57, 64, 281–82; Jack M. Balkin, Constitutional Redemption 54 (2011). ↑
  257. Balkin, supra note 66, at 75 (defining redemptive constitutionalism). ↑
  258. It is important to note, however, that Balkin concedes that constitutional redemption is not guaranteed. Id. at 76; see also Jack M. Balkin, Constitutional Rot, in Can It Happen Here?: Authoritarianism in America 19, 19–35 (Cass R. Sunstein ed., 2018) (asserting that republics are susceptible to constitutional rot and patterns of success are not guaranteed to continue). Thus, while he has a Millian faith in human progress, he does not seem to carry that belief as far as some Progressives, who view social progress as inevitable. See Balkin, supra note 255, at 8. ↑
  259. David A. Strauss, Common Law, Common Ground, and Jefferson’s Principle, 112 Yale L.J. 1717, 1718 (2003). ↑
  260. Strauss, supra note 49, at 928 & n.116; see also Strauss, supra note 1, at 18, 44, 100–01 (questioning why people from a different era should decide fundamental questions about our society today). ↑
  261. Strauss, supra note 258, at 1724. ↑
  262. Indeed, Strauss describes and rejects this conservative view. See Strauss, supra note 49, at 891 (asserting that the past is not “somehow constitutive of one’s own or one’s nation’s ‘identity’”). ↑
  263. Strauss emphasizes that the precedents that his common-law methodology takes into account are not limited to judicial precedents, see id. at 925, but I use the term “judicial precedent” here because it is easier to understand his point when thinking about the judicial context. ↑
  264. See David A. Strauss, The Supreme Court 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 2, 2–5, 28–52 (2015). ↑
  265. Strauss, supra note 49, at 906–11. ↑
  266. Strauss, supra note 1, at 51–97; Strauss, supra note 49, at 898–906, 916–24. ↑
  267. Strauss, supra note 1, at 12–18. ↑
  268. Id. at 40–42; Strauss, supra note 49, at 891–98. ↑
  269. Strauss, supra note 1, at 100 (emphasis added). ↑
  270. I will discuss Strauss’s epistemological basis for his methodology in more detail below, see infra Subsection II.B.2, but he stresses that his epistemological argument is not based on the authority of the past. See Strauss, supra note 49, at 891–98. ↑
  271. McConnell, supra note 107, at 1130–31. McConnell presents this as a possible response to the dead-hand argument, but he makes clear later in his article that it is, in fact, his own view. See id. at 1133–35, 1140. ↑
  272. Id. at 1134. ↑
  273. Id. ↑
  274. See id. at 1136; see also Alicea, supra note 74, at 152–54 (asserting that recognizing the authority of predecessors’ judgments is essential to preserving the legitimacy of present-day decisions). ↑
  275.  Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619, 650–59 (1994). ↑
  276. Id. at 672–73; see also Rubenfeld, supra note 172, at 62–65 (arguing that the meaning of a society’s commitments evolves alongside that society). ↑
  277. Young, supra note 274, at 688–91. For another Burkean approach to constitutional adjudication, see generally Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029 (1990) (arguing that the common-law model is more descriptively accurate than other methods of constitutional adjudication). ↑
  278. There is a good argument for including natural-law based theories in the anti-individualist camp, since (as noted above) conservatism and the national-law tradition tend to have a similar view of the relationship of the individual to society. Natural-law theories come in both originalist, see generally Lee J. Strang, Originalism’s Promise (2019) (basing originalism on a natural-law account); Jeffrey A. Pojanowski & Kevin C. Walsh, Enduring Originalism, 105 Geo. L.J. 97 (2016) (same), and non-originalist varieties, see generally Adrian Vermeule, Common-Good Constitutionalism: A Model Opinion, Ius & Iustitium (June 17, 2020), https://iusetiustitium.com/common-good-constitutionalism-a-model-opinion/ [https://perma.cc/NUE4-UV3Q] (arguing for a framework for interpreting the U.S. Constitution that centers on its commitment to the general welfare); Adrian Vermeule, Beyond Originalism, Atlantic (Mar. 31, 2020), https://www.theatlantic.com/‌ideas/archive/2020/03/‌common‌-good-constitutionalism/609037/ [https://perma.cc/84PE-L96V] (asserting the legitimacy of interpreting the Constitution in such a manner as to allow the government to promote the common good). ↑
  279. Young, supra note 274, at 622. ↑
  280. See supra notes 246–57 and accompanying text. ↑
  281. Balkin, supra note 66, at 76. ↑
  282. Id. at 81–93, 277–319. ↑
  283. Id. at 76. ↑
  284. Id. at 74. ↑
  285. Id. at 78. ↑
  286. Id. at 28–29, 62. ↑
  287. Mill, supra note 159, at 14. Indeed, Balkin acknowledges that his “focus on progress is characteristically modernist,” with its “assumptions about the proper direction of history, which is a story of potential improvement.” See Balkin, supra note 255, at 49–50; see also id. at 76 (describing redemption as a narrative of progress). ↑
  288. James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms 130 (2015) (“[T]here are unmistakable affinities here between Balkin’s commitment to interpret the Constitution so as to redeem citizens’ faith in its promises and aspirations and Dworkin’s and [Fleming’s] commitment to interpret the Constitution in its best light.”). ↑
  289. Dworkin, supra note 50, at 190–92, 216. ↑
  290. Id. at 176; see also id. at 184 (stating that integrity is flouted whenever a society enacts laws that express incoherent principles of justice). ↑
  291. Id. at 191–92. ↑
  292. Id. at 225. ↑
  293. See id. at 228. ↑
  294. Id. at 228–32; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 10–12 (1996). ↑
  295. Dworkin, supra note 293, at 2. ↑
  296. See Richard A. Posner, Conceptions of Legal Theory: A Response to Ronald Dworkin, 29 Ariz. St. L.J. 377, 383 (1997) (describing Dworkin as “a universalizing rationalist”). ↑
  297. See Dworkin, supra note 50, at 245. ↑
  298. Id. ↑
  299. See id. at 239. ↑
  300. Id. at 264–65. ↑
  301. See Cass R. Sunstein, Second-Order Perfectionism, 75 Fordham L. Rev. 2867, 2879–81 (2007); Cass R. Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 394–96 (2006); Young, supra note 274, at 690–91 & n.356. ↑
  302. See Fleming, supra note 287, at 102–05 (disclaiming the notion that “fit” entails obligations to the past). ↑
  303. I could perhaps add Barnett to the list of rationalistic theories, since his premises track Locke’s so closely, but Locke’s writings make his rationalism more explicit than Barnett’s do. Moreover, to the extent that pluralist constitutional theories are based on Dworkin’s fit-and-justification approach, see Griffin, supra note 51, at 1756–57; Fallon, supra note 51, at 1233–34, one might consider them rationalist as well, but it is not clear whether all pluralist theorists understand “fit” in the same law-as-integrity way that Dworkin does, with its far-reaching requirements of coherence across the corpus of law. ↑
  304. See Strauss, supra note 1, at 40–42; Strauss, supra note 49, at 891–94; Young, supra note 274, at 642–50. Thomas Merrill could also be added to that list. See Thomas W. Merrill, Bork v. Burke, 19 Harv. J.L. & Pub. Pol’y 509, 519–21 (1996). ↑
  305. See, e.g., Strauss, supra note 1, at 40–44; Merrill, supra note 303, at 518–21; Young, supra note 274, at 667–69 & n.240. ↑
  306. See Bork, supra note 1, at 177 (conceding, in response to Dworkin’s assertion that “the choice of [originalism] is itself a political decision,” that “[i]t certainly is”); see also Dworkin, supra note 50, at 259–60; Ronald Dworkin, A Matter of Principle 54–55, 162–65 (1985). ↑
  307. See Robert H. Bork, Tradition and Morality in Constitutional Law, in A Time to Speak: Selected Writings and Arguments 397, 401–02 (2008). ↑
  308. Dworkin, supra note 50, at 108–12, 190–92. ↑
  309. See, e.g., Balkin, supra note 66, at 59–99; Barnett, supra note 118, at 1–86; Dworkin, supra note 50, at 176-224. ↑
  310. Bork, supra note 1, at 173–74. ↑
  311. See id. at 133–38. ↑
  312. Bork, supra note 306, at 400. ↑
  313. Id. at 401; see also Robert H. Bork, Styles in Constitutional Theory, in A Time to Speak: Selected Writings and Arguments, supra note 306, at 223, 235. ↑
  314. Bork, supra note 312, at 223, 235. ↑
  315. Bork, supra note 1, at 153–55. ↑
  316. Bork, supra note 312, at 223–26. ↑
  317. Bork, supra note 1, at 143–53. ↑
  318. Id. at 155 (“The philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.”). ↑
  319. Bork, supra note 312, at 235. ↑
  320. See Coan, supra note 38, at 876–84. ↑
  321. Coan would call this an example of “hidden disagreements.” See id. at 878­–80. ↑
  322. Balkin expressly links his theory of legitimacy with his thin view of original meaning. See Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev. 815, 828–29. ↑
  323. Balkin, supra note 66, at 59–73. ↑
  324. Mill, supra note 159, at 14. ↑
  325. See generally John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy, 2012 U. Ill. L. Rev. 737 (arguing that Balkin’s theory erroneously assumes that abstract constitutional provisions are necessarily vague and underdetermined); see also Barnett & Bernick, supra note 57, at 33–36. ↑
  326. Coan would call this an example of “hidden agreement.” Coan, supra note 38, at 877–78. ↑
  327. Vermeule, supra note 119, at 1484. ↑
  328. Id. at 1502–06. Vermeule’s purpose was not to defend originalism, but I believe his arguments at least undercut Strauss’s Burkean arguments against originalism. ↑
  329. 576 U.S. 644 (2015). ↑
  330. See Strauss, supra note 263, at 6–7. ↑
  331. See United States v. Windsor, 570 U.S. 744, 808 (2013) (Alito, J., dissenting). ↑
  332. Indeed, one of the reasons why Bork rejected methodologies like Strauss’s is that they allow judges to rely too much on their individual reason. See Bork, supra note 1, at 234–35. ↑
  333. Fleming, supra note 287, at 125–41. ↑
  334. Id. at 130–32. ↑
  335. Id. at 130. ↑
  336. Id. at 131–32. ↑
  337. See supra Subsection II.B.2. ↑
  338. See supra Subsection II.B.1. ↑
  339. Strauss, supra note 49, at 895–96. Strauss’s conception of tradition is arguably inconsistent with his Burkean anti-rationalism, which could explain why he and Bork disagree so strongly about methodology. ↑
  340. Young, supra note 274, at 650–53, 673, 689. ↑
  341. Id. at 652, 656, 689. ↑
  342. As noted above, Vermeule’s article is a rare example of a justifications-based argument. ↑
  343. Dworkin, supra note 50, at 111. ↑
  344. See, e.g., Balkin, supra note 66, at 59–99; Barnett, supra note 118, at 1–86; Dworkin, supra note 50, at 176–224. ↑
  345. Jacob Gershman, Study Casts Doubt on Kantian Link to Bulgarian Law, Wall St. J. L. Blog (Mar. 31, 2015, 4:20 PM), https://www.wsj.com/articles/BL-LB-50958 [https://perma.cc/4NEK-ZGE4]; Smith, supra note 11, at 227–30. ↑
  346. Bork, supra note 1, at 134. ↑
  347. See Barnett, supra note 118, at 279–80. ↑
  348. See supra Subsection II.B.2; see also Balkin, supra note 66, at 104–08 (expressly linking the debate about expected applications with delegation of authority to future adjudicators); John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. 371, 380–81 (2007) (observing that the relevance of expected applications is linked to how much faith the enactors had in the reasoning of future generations). ↑
  349. Compare Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749–54 (2020), with 140 S. Ct. at 1766–73 (Alito, J., dissenting). But see Tara Grove, Which Textualism?, 134 Harv. L. Rev. 265, 291–96 (2020) (arguing that Justice Gorsuch’s approach to textualism actually leads to less judicial discretion). Grove identifies Justices Alito and Gorsuch as proposing different kinds of textualism—that is, different variations of the same methodology—and I would suggest that their differences might be based, at least in part, on their different politico-theoretical premises that shape their justifications for textualism. ↑
  350. Bostock, 140 S. Ct. at 1757 (Alito, J., dissenting) (citation omitted). Although Bostock is a statutory interpretation case, the debate between the majority and dissents about expected applications is similar to the debate seen in the constitutional theory literature, see supra note 347, so it strikes me as a good example despite its non-constitutional context. ↑
  351. Cf. Alasdair MacIntyre, After Virtue: A Study in Moral Theory 1–22 (3d ed. 2007) (making an even more radical version of this argument). ↑
  352. See Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 467 (1988). ↑
  353. McConnell, supra note 107, at 1128; see also Christopher J. Peters, What Lies Beneath: Interpretive Methodology, Constitutional Authority, and the Case of Originalism, 2013 BYU L. Rev. 1251, 1276. ↑
  354. See Fallon, supra note 113, at 127, 129 (recognizing this distinction); see also Bork, supra note 1, at 177 (same). ↑
  355. See, e.g., supra notes 298–313 and accompanying text (describing Dworkin’s methodology). ↑
  356. See generally John O. McGinnis & Michael B. Rappaport, The Power of Interpretation: Minimizing the Construction Zone, 96 Notre Dame L. Rev. 919 (2021) (arguing that various tools of interpretation can minimize—if not eliminate—the construction zone). ↑
  357. Peters, supra note 352, at 1273–83. ↑
  358. Whittington, supra note 66, at 111–12; Gray, supra note 13, at 23–24. ↑
  359. Gray, supra note 13, at xiii; see also Ryan, supra note 14, at 23–40; Waldron, supra note 123, at 129–40; Arblaster, supra note 13, at 13. ↑
  360. For a refutation of this position in general, see Fallon, supra note 35, at 545–49. ↑
  361. Solum, supra note 70, at 20–30; Saikrishna B. Prakash, The Misunderstood Relationship Between Originalism and Popular Sovereignty, 31 Harv. J.L. & Pub. Pol’y 485, 486–89 (2008); Gary Lawson, On Reading Recipes . . . and Constitutions, 85 Geo. L.J. 1823, 1825–34 (1997). Michael Stokes Paulsen’s argument is less about linguistic theory than it is about the Constitution’s own prescribed methodology. See Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 Nw. U. L. Rev. 857, 858–64 (2009). ↑
  362. See, e.g., Richard H. Fallon, Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1289–95 (2015); Cass R. Sunstein, There Is Nothing that Interpretation Just Is, 30 Const. Comment. 193, 194–98 (2015). ↑
  363. See Sachs, supra note 10, at 829–35. ↑
  364. See, e.g., Strauss, supra note 263, at 3–5. ↑
  365. Peters, supra note 352, at 1278–84. ↑
  366. Coan, supra note 38, at 839 (noting that the proposition that “approaches to constitutional decision-making require justification in the form of sound normative foundations” is “widely accepted but not entirely uncontroversial”). ↑
  367. Solum, supra note 2, at 472–73. ↑
  368. Lawson, supra note 360, at 1823–25, 1835–36. ↑
  369. Paulsen, supra note 360, at 919. ↑
  370. Prakash, supra note 360, at 489–91. ↑
  371. Lawson, Paulsen, and Prakash would likely object to describing originalism as a theory of constitutional adjudication, rather than as a theory of constitutional interpretation, because they define originalism as concerned only with how to interpret texts, not with telling judges how to decide cases. See Paulsen, supra note 360, at 918–19; Prakash, supra note 360, at 491; Lawson, supra note 360, at 1823–25. I disagree with that conception of originalism, but even if those three theorists are right, it does not make a difference to my argument that constitutional theory more generally—which is concerned with adjudication—requires normative arguments. ↑
  372. See, e.g., Strauss, supra note 49, at 898–906. ↑
  373. Dworkin, for example, based the need for “fit” on the law-as-integrity principle, which is a normative argument. See Dworkin, supra note 50, at 176–224. ↑
  374. Fallon, supra note 35, at 545–49. ↑
  375. Id. at 540–41, 541 n.13. ↑
  376. Sachs, supra note 10, at 822–38; Baude, supra note 8, at 2363–91. ↑
  377. Pojanowski & Walsh, supra note 277, at 110. ↑
  378. Baude, supra note 8, at 2395. ↑

  379. Solum, supra note 1, at 79–80. ↑

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