Article

The But-For Theory of Anti-Discrimination Law

Discrimination law has long been in theoretical crisis. Its central theory—disparate treatment law—has no agreed-upon core principles. Because prevailing theories of discrimination once treated “disparate treatment” and “discriminatory intent” as coextensive—something we now know not to be true—it is unclear whether all “disparate treatment” is truly proscribed. In the absence of a clear commitment to proscribing all disparate treatment, judicial law-making has run amok. The result has been the development of a network of technical rules that have all but eclipsed the factual question of whether discrimination took place, and that have been devastating to discrimination plaintiffs’ success.

This Article contends that the time has come to resolve the theoretical crisis in anti-discrimination law. In a series of recent cases, the Supreme Court has situated the question of whether an individual or group would have fared differently “but for” their protected class status as the central defining question of anti-discrimination law. Moreover, the Court has suggested that this inquiry flows from anti-discrimination law’s plain text. As such, there are compelling arguments to be made that a true disparate treatment principle—the but-for principle—is the textually mandated inquiry in anti-discrimination law, and that judicial deviations from this standard are illegitimate.

This idea—that our anti-discrimination laws must reach all contexts where the outcome would be different “but for” the sex, race, or other protected class status of those affected—is simultaneously conservative in its aspirations and potentially radical in its legal effects. Such an approach comports with our often-stated commitment that all individuals in our society be given equal opportunities, and not be judged on the basis of their race, sex, or other protected class status. But anti-discrimination law has strayed far from these anti-disparate treatment principles—and thus taking such a commitment seriously would have truly significant effects. This Article thus suggests that reorienting our inquiry around the factual question of whether the outcome would be different “but for” protected class status is important to ensuring that anti-discrimination law can achieve its basic promises.

Introduction

Discrimination law has long been in theoretical crisis. Because its core theory—disparate treatment—was recognized at a time when “disparate treatment” and “intentional discrimination” were believed to be one and the same, anti-discrimination law’s foundational cases conflate the two.1 1.See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth).Show More This has created a fundamental question as to disparate treatment law’s central theoretical principles. Does disparate treatment law in fact prohibit all “disparate treatment,” (i.e., all decisions in which the outcome would have been different “but for” race, sex, or other protected class status)? Or does it prohibit only the narrower category of “intentional discrimination” (i.e., decisions in which protected class status played a conscious role)?

These questions about anti-discrimination law’s core principles remain unanswered even today, with important adverse consequences for anti-discrimination law. In the absence of a clear commitment to barring “disparate treatment,” judicial law-making has run amok. Few judges even ask the question of whether a policy decision—or an employment action—would have turned out differently had the individual or group affected been white, male, or of a majority religion.2 2.See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law.Show More Instead, across both constitutional and statutory law, convoluted doctrines result in the dismissal of the majority of anti-discrimination claims, whether or not “disparate treatment” (in the literal sense) has in fact occurred.3 3.See infranotes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017).Show More

This Article suggests that the time has come to address this theoretical crisis, and recenter anti-discrimination doctrine around what ought to be its core principles. As the very name of the doctrine suggests, “disparate treatment” law is supposed to be centrally concerned with differential treatment. This simple principle—that all groups and individuals have a right to receive the same treatment at the hands of government, employers, and others, regardless of race, sex, or other protected class status—is central to what anti-discrimination law is supposed to do. If our “anti-discrimination” principles regularly absolve defendants of liability where groups or individuals in fact would have been treated better if they were white, or men, or non-disabled, then anti-discrimination law is not worthy of its name.

While addressing anti-discrimination law’s theoretical crisis has long been urgent, it has recently become far more plausible. Across a series of recent cases, the Supreme Court has articulated the view that anti-discrimination’s law’s central defining principle is what I refer to in this Article as the “but-for principle.”4 4.Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim).Show More Thus, the Court has embraced the view that where the outcome would be different “but for” the protected class status of those affected, anti-discrimination law is violated.5 5.See sources cited supra note 4.Show More This is of course simply another way of saying that disparate treatment (in its literal, not technical, sense) is proscribed. As such, the Court’s recent cases offer renewed opportunities to suggest that anti-discrimination law must be centered on a true “disparate treatment” theory, which would mandate liability wherever differential treatment occurs (i.e., wherever the outcome would be different “but for” protected class status).

Importantly, the Court has situated its reasoning in these cases as founded on the “plain meaning” of anti-discrimination law’s statutory text.6 6.Bostock, 140 S. Ct. at 1743, 1750.Show More As such, they offer an unusual opportunity to argue that a true disparate treatment principle not only resides at the core of anti-discrimination law but also in its plain textual meaning. In a Supreme Court where textualism is the ascendant method of statutory interpretation, this makes it uniquely plausible to claim that a commitment to proscribing all actual differential treatment is not only the preferred theory of disparate treatment law but (at least for statutory anti-discrimination law) the textually mandated one. And because disparate treatment doctrine has typically been construed comparably across the constitutional and statutory domains,7 7.See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. SeeU.S. Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests.Show More such a move could have profound impacts in the constitutional domain as well. As such, the current moment offers unique opportunities for resolving the theoretical crisis at the heart of anti-discrimination law and for addressing the many doctrinal pathologies that have arisen out of it.

Ironically, if there is one major obstacle to harnessing this recent turn in the Supreme Court’s case law toward a true disparate treatment paradigm, it may be those who are, in theory, most committed to building a meaningful body of anti-discrimination law. Many anti-discrimination scholars and advocates have critiqued the but-for principle—and indeed at times disparate treatment law in general—perceiving it as a weak substitute for preferred theories of anti-discrimination law, such as disparate impact and motivating factor liability.8 8.Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484).Show More This longstanding opposition to the but-for principle may make anti-discrimination scholars and advocates reluctant to draw on these cases and accompanying theoretical principles, regardless of their potential.

But this Article suggests that the increased risks of embracing the but-for principle are slight—and that the opportunity costs of not doing so are considerable. The opportunity to recenter disparate treatment law around what should be its core theoretical commitment is not one we ought to take lightly. Without such a core theoretical commitment, we can expect to continue to see an anti-discrimination law without any central rudder, overrun by judge-made doctrines, and highly susceptible to individual judicial biases.9 9.See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”).Show More Punitive or harmful government policies that would not have been adopted “but for” the (minority) race of those affected will continue to proliferate and go unremedied.10 10.See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX].Show More Employment decisions that treat women, minorities and members of the LGBTQ community more harshly than those who are men, white, cisgender and straight will continue to be evaluated—and often dismissed—under a network of doctrines that bear little relationship to whether differential treatment occurred.11 11.See Sperino & Thomas, supra note 3, at 1–4.Show More

In contrast, an embrace of the but-for principle—and centering it as anti-discrimination law’s core commitment—offers myriad concrete opportunities to argue for a more sensible and elegant approach to anti-discrimination law. Under the but-for principle, our foundational inquiry ought to be a simple and factual one: would the outcome have been different “but for” the race, sex, or other protected class status of those adversely affected? While in many cases answering this factual question may be difficult—just as it is in, for example, tort claims—the procedure for doing so is straightforward. The fact finder (jury or judge) ought to consider all of the relevant evidence and consider whether it appears, by a preponderance of the evidence, that a different outcome would have resulted had the protected class status of those affected been different. For example, would the Voter ID law have been passed, if those it had been likely to disenfranchise were overwhelmingly white? Or would a man have been assumed to be uncommitted to work—and thus denied a promotion—simply because he had small kids?

Centering this approach has the potential to address many of the pathologies that currently plague both statutory and constitutional anti-discrimination law. The search for a particular individual bad actor (or actors) becomes far less relevant if the but-for principle is the central defining principle of disparate treatment doctrine since the question can be asked without defining the precise role of particular individuals in producing the discriminatory action.12 12.Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination).Show More So too, the search for a strong form of self-aware conscious intent should not be dispositive if our central focus is on whether the outcome would have been different “but for” the protected class of those affected. Self-aware intent certainly may be helpful in proving “but for” causation, but it is only one of many ways that but-for causation can be shown.13 13.Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor).Show More Finally, widespread recognition of the but-for principle as the central defining feature of disparate treatment doctrine would provide an opportunity to address the myriad technical doctrines that currently result in the dismissal of numerous statutory anti-discrimination claims, without ever asking the core question of whether discrimination took place.14 14.See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims).Show More

In addition to providing the opportunity to address many of anti-discrimination law’s pathologies, the but-for principle could also provide a stronger foundation for many of anti-discrimination law’s equality-promoting doctrines and scholarly ideas. As the case of Bostock v. Clayton County demonstrates, the stereotyping principle—long critiqued by some for its lack of statutory foundation15 15.See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring).Show More—can be situated comfortably within the but-for principle, offering it renewed vigor and promise.16 16.See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020).Show More Similarly, the theory of “negligent discrimination”—long argued for by some anti-discrimination scholars17 17.See infra notes 226–29 and accompanying text.Show More—becomes largely unnecessary under a but-for discrimination regime.18 18.See infra Section IV.B.Show More A true but-for standard would also effectuate many—though certainly not all—goals of other equality-promoting doctrines, such as motivating factor and disparate impact.19 19.See infra Part IV.Show More

As such, there are many potential benefits to embracing the but-for principle as the theoretical core of disparate treatment doctrine and relatively few genuine drawbacks. Indeed, many of the sources of opposition have rested on misconceptions about what “but for” demands or permits (including, for example, misconceptions that a but-for standard effectively requires a showing that protected class status was the sole cause of the defendant’s actions).20 20.See infra Part V.Show More Other sources of opposition have rested on fears that the but-for principle (or other anti-classificationist approaches) would endanger minority-protective doctrines such as affirmative action.21 21.See infra Subsection V.A.2.Show More But as this Article demonstrates, much of what anti-discrimination scholars and advocates hope to accomplish through alternatives to the but-for principle can be achieved through the embrace of the principle—and much of what they hope to avoid has already come to pass.22 22.Id.Show More

The time has come to resolve the theoretical crisis in anti-discrimination law. This Article takes up that work. The Parts that follow describe the theoretical crisis at the heart of anti-discrimination law, develop arguments for how it may be resolved, and suggest what the benefits of such a resolution might be. But before proceeding to this substantive discussion, it is important to note the role of terminology in both generating—and ultimately solving—anti-discrimination law’s theoretical crisis. For too long we have conflated two concepts—“disparate treatment” and “intentional discrimination”—and we ought not to do so going forward. Thus, in this Article, when I use the term “disparate treatment,” I mean a true disparate treatment standard—that the outcome would have been different “but for” the protected class of those affected. When I refer to “intentional discrimination,” I mean to describe the narrower class of disparate treatment that is perpetrated with discriminatory intent.23 23.Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016).Show More Both of these standards are distinct from a “disparate impact” standard, which asks whether the burdens of a policy or practice fall more heavily on a particular group, but in a context where disparate treatment need not be present.24 24.42 U.S.C. § 2000e-2(k).Show More

The remainder of this Article proceeds as follows. Part I makes the case that anti-discrimination law is in conceptual crisis, describes the origins of this crisis, and details the ways that this theoretical crisis has led to serious pathologies in contemporary anti-discrimination law. Part II turns to the set of recent cases in which the Supreme Court has described the but-for principle—a true disparate treatment principle—as the central defining feature of anti-discrimination law and describes the potential of such cases for resolving anti-discrimination law’s theoretical crisis. Part III illustrates what a factual, but-for-centered inquiry might look like in an individual case and describes the radical systematic potential of arguing that this simple factual inquiry must control. Part IV describes how many of the objectives of the equality-promoting doctrines that anti-discrimination scholars and advocates have favored can be effectuated by turning to a true disparate treatment inquiry, via the but-for principle. Finally, Part V addresses likely headwinds to a project of recentering anti-discrimination law around the but-for principle, including potential progressive objections to such a project, potential legal obstacles, and judicial attitudes that may pose a barrier to reform.

  1. * Many thanks to Michael Carrier, Jessica Clarke, Tristin Green, Guha Krishnamurthi, Alexandra Lahav, Shannon Minter, Zalman Rothschild, D’Andra Shu, Joseph Singer, Sandra Sperino, Michael Selmi, Brian Soucek, Charles Sullivan, and Deb Widiss for helpful conversations and feedback regarding this project, and to the editors of the Virginia Law Review for excellent editorial suggestions. Special thanks are owed to Jessica Clarke, Sandra Sperino, and Deb Widiss for extensive feedback. This Article was presented at the 15th Annual Colloquium on Labor and Employment Law (“COSELL”) and at the Association of American Law Schools 2021 Meeting and received excellent feedback from participants. ↑
  2. See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 382 (1977); see also infra notes 39–60 and accompanying text (discussing this issue in depth). ↑
  3. See, e.g., Katie Eyer, The Return of the Technical McDonnell Douglas Paradigm, 94 Wash. L. Rev. 967, 1017 (2019). In the interest of brevity, I do not always list every protected group when giving examples of the “but for” principle. This is not intended to suggest the exclusion of other groups from the but-for principle, and, indeed, the application of the but-for principle would be the same across all of the various contexts in which groups have protections under statutory or constitutional anti-discrimination law. ↑
  4. See infra notes 61–71 and accompanying text; Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 13–14, 40–44, 158 (2017). ↑
  5. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (Age Discrimination in Employment Act claim); see, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (Title VII retaliation claim); Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1018–19 (2020) (42 U.S.C. § 1981 claim); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739–40 (2020) (Title VII sex discrimination claim); see also City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (same); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII race discrimination claim). ↑
  6. See sources cited supra note 4. ↑
  7. Bostock, 140 S. Ct. at 1743, 1750. ↑
  8. See, e.g., Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341, 1354–55 (2010). Importantly, no textual barriers would exist to such an interpretation of the Equal Protection Clause, which is fully consistent textually with the but-for principle. See
    U.S.

    Const. amend. XIV, § 1 (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). The one major difference between disparate treatment principles in the constitutional context and in most statutory contexts has traditionally been that the Constitution permits the government to show they had a sufficient “interest” to justify the discrimination. This Article addresses only the initial threshold inquiry into whether there was discrimination—and if so, of what kind—and does not address the ability of the government to justify the discrimination based on the government’s interests. ↑

  9. Indeed, in 2013, this Author joined a brief arguing against the but-for principle and in favor of a motivating factor standard. See Brief of Employment Law Professors as Amici Curiae in Support of Respondent at 5, app. 3, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (No. 12-484). ↑
  10. See generally Sperino & Thomas, supra note 3, at 58–83 (describing in detail the judge-made doctrines that the courts use to routinely dismiss discrimination claims); Katie Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1276 (2012) (noting that dismissals on summary judgment and motions to dismiss are “extremely common in discrimination litigation, accounting for a full 86% of litigated outcomes”). ↑
  11. See, e.g., Petula Dvorak, We Scorned Addicts When They Were Black. It Is Different Now That They Are White, Wash. Post (Apr. 12, 2018), https://www.washingtonpost.com/local/we-hated-addicts-when-they-were-black-it-is-different-now-that-they-are-white/2018/04/12/cd845f20-3e5b-11e8-974f-aacd97698cef_story.html [https://perma.cc/E49E-ZSGX]. ↑
  12. See Sperino & Thomas, supra note 3, at 1–4. ↑
  13. Cf. McCleskey v. Kemp, 481 U.S. 279, 293–95 (1987) (rejecting Equal Protection claim in part on the grounds that statistical study could not identify the actors who engaged in discrimination). ↑
  14. Cf. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Calif. L. Rev. 997, 1029–38 (2006) (describing aspects of disparate treatment doctrine that assume the existence of a self-aware discriminatory actor). ↑
  15. See generally Sperino & Thomas, supra note 3 passim (detailing such doctrines and their impact on anti-discrimination litigants); Eyer, supra note 9, at 1276 (noting that dismissals of plaintiffs’ claims at motions to dismiss and summary judgment account for 86% of litigated outcomes in discrimination cases); Eyer, supra note 2, 969–72 (describing the ways in which technical rules attached to the McDonnell Douglas paradigm are used to dismiss anti-discrimination claims). ↑
  16. See, e.g., Hamm v. Weyauwega Milk Prods., 332 F.3d 1058, 1066–67 (7th Cir. 2003) (Posner, J., concurring). ↑
  17. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1741, 1748–49 (2020). ↑
  18. See infra notes 226–29 and accompanying text. ↑
  19. See infra Section IV.B. ↑
  20. See infra Part IV. ↑
  21. See infra Part V. ↑
  22. See infra Subsection V.A.2. ↑
  23. Id. ↑
  24. Though there may be some theoretical possibility of distinguishing between “intent,” “purpose,” and “motive,” (and any number of scholars have attempted to do so) I follow the convention of the Supreme Court herein, which is to use those terms interchangeably. See Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1, 56 n.318 (2016). ↑

  25. 42 U.S.C. § 2000e-2(k). ↑

Excited Delirium and Police Use of Force

­­­­

Excited delirium is often described as a psychiatric illness characterized by a sudden onset of extreme agitation, confusion, and aggression that can make people irrationally combative and dangerous. Since its inception in the 1980s, this medical condition has been used to justify deadly uses of force by police officers who detain individuals whose seemingly bizarre and uncontrollable behavior is believed to be a threat. Excited delirium is also commonly used by medical examiners and law enforcement to explain why the extreme toll taken on the bodies of people who experience these psychiatric episodes might lead to spontaneous death when they are in police custody. While this diagnosis is increasingly relied upon to explain police use of force and in-custody deaths, a curious matter remains unresolved: excited delirium, as an actual medical condition, does not seem to exist. It is not recognized as a valid medical diagnosis in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) nor in the World Health Organization’s International Classification of Diseases (“ICD-10”), which are the most authoritative classifications of mental health conditions. Moreover, excited delirium has an ignoble history linked to racism and fraudulent forensic science. Nevertheless, excited delirium continues to play a prominent role in policing, prosecutions, and § 1983 constitutional tort claims adjudicated by federal courts when victims of police violence seek damages for violations of their constitutional rights.

This Article provides the first comprehensive assessment of excited delirium in law and legal scholarship. Drawing upon an original dataset that collects information on in-custody deaths over the past decade tied to excited delirium, this Article documents the extent to which this condition has been articulated by legal and medical actors as a cause of death in situations where police have used force. The data show, among other findings, that at least 56% of deaths that occur in police custody that are attributed to excited delirium involve Black and Latinx victims. By putting these findings in conversation with an examination of the scientific literature and § 1983 police excessive force cases that discuss excited delirium, this Article draws attention to how excited delirium has become a misplaced medical diagnosis that obscures and therefore excuses questionable uses of police force that produce harm and death—especially in communities of color. By relying on pseudoscience with little evidence, medical examiners and coroners have given life to a false medical condition that is often used to shield police officers from accountability when they use unacceptably harsh and unlawful force. Excited delirium shifts the blame for these deaths to what is often wrongly presumed to be an individual’s tragic medical condition, which obfuscates the structural conditions that predictably lead to unlawful uses of police force that are the more proximate cause of harm. By offering this examination of excited delirium, its role in policing, and how it impacts the adjudication of excessive force claims, this Article suggests that policymakers and legal actors should be more attentive to how science and medicine can be used inappropriately to impede police accountability and justice for victims of police violence.

Introduction

Tommie McGlothen Jr. left his sister’s house in the Lakeside area of Shreveport, Louisiana, while experiencing a mental health crisis in April 2020.1 1.Gerry May, Attorney Disputes Coroner’s Finding in Death of Tommie McGlothen, Jr. After Police Confrontation, KTBS (June 10, 2020), https://www.ktbs.com/news/‌3investigates/attorney-disputes-coroners-finding-in-death-of-tommie-mcglothen-jr-after-police-confrontation/article_f100f4a6-ab7b-11ea-9d9b-1b7fb00daba3.html [https://perma.cc/8SEX-6Y42].Show More As he walked down the street, his erratic behavior gave a passerby the impression that McGlothen was attempting to break into a car. The police were summoned. When officers approached McGlothen, a dispute erupted and McGlothen was handcuffed. Witnesses noted that although McGlothen was not resisting at this point, the officers struck him several times and slammed him into a patrol car.2 2.Gerry May, Shreveport Man Dies in Police Custody; Family Fears “Cover-Up,” KTBS (May 31, 2020), https://www.ktbs.com/news/shreveport-man-dies-in-police-custody-family-fears-cover-up/article_ef947450-a20a-11ea-ac9e-87e6f58f8b87.html [https://perma.cc/6ADP-6EFT].Show More The officers then put McGlothen into the back of the car and left him there alone for nearly an hour. When they returned to check on him, McGlothen was unresponsive.3 3.Gerald Herbert & Rebecca Santana, ‘Denied the Truth’ Says Son of Black Man Who Died in Custody, ABC News (June 12, 2020, 5:19 PM), https://abcnews.go.com/US/wireStory/‌denied-truth-son-black-man-died-custody-71222156 [https://perma.cc/G9ES-NMPP].Show More Paramedics arrived at the scene, and witnesses said that the “ambulance drove off slowly with no lights or siren,”4 4.KSLA Investigates Reveals Video of Tommie McGlothen’s Last Encounter with Police, KSLA (June 8, 2020, 4:58 PM), https://www.ksla.com/2020/06/08/ksla-investigates-reveals-video-tommie-mcglothens-last-encounter-with-police/ [https://perma.cc/J2WM-NPJZ].Show More suggesting to some onlookers that he was already dead.

The local coroner, Dr. Todd Thoma, released a report on the cause of McGlothen’s death two months later. Curiously, he concluded that it was “natural”—the result of a psychiatric condition known as excited delirium. As Thoma explained:

These people get into a situation where they become confused, disoriented, violent, aggressive. They can’t listen to reason. There is no reason. This is a medical problem. This is not somebody’s behavioral problem . . . . When police try to restrain [people suffering from excited delirium] to try to take them into custody, it takes a lot of force sometimes to do that. . . . [They are also] impervious to pain.5 5.May, supra note 1.Show More

Thoma recites what has become an increasingly familiar narrative embraced by coroners, law enforcement, and other legal and medical actors when people seem to suddenly and inexplicably die after being involved with the police. The death is seen as an unfortunate, yet natural, byproduct of a psychiatric condition that causes people to get so overworked and agitated that they spontaneously die, through no fault of anyone or anything except for their own defective bodies.

But what is curious about the coroner’s initial determination of McGlothen’s death is that all available evidence suggests that he died from injuries other than some mysterious psychiatric disorder. Video evidence shows four police officers pummeling a handcuffed McGlothen for several minutes with repeated punches and kicks. They hit him with night sticks, tased him, and used mace.6 6.Herbert & Santana, supra note 3; May, supra note 2.Show More The coroner concluded that “[a]lthough [an] autopsy showed that Mr. McGlothen suffered multiple blunt force injuries from both his confrontation with police and the citizens earlier in the day and that evening, no injuries were life-threatening or could be considered serious.”7 7.Caddo Coroner: McGlothen’s Death Natural, Possibly Preventable, KSLA (June 9, 2020, 9:41 AM), https://www.ksla.com/2020/06/09/caddo-coroner-mcglothens-death-natural-possibly-preventable/ [https://perma.cc/QU2Q-25ZP]. In September 2020, four officers were charged with negligent homicide and malfeasance after Thoma “determined that Mr. McGlothen’s death ‘was preventable’ because the officers should have known he needed medical treatment.” Michael Levenson, Four Louisiana Officers Charged in Death of Black Man with Mental Illness, N.Y. Times, (Sept. 18, 2020), https://www.nytimes.com/2020/‌09/18/us/shreveport-police-officers-charged-death.html [https://perma.cc/X9D2-3FQ3].Show More However, when McGlothen’s family saw his corpse, they were shocked by its condition. His sister, Macronia McGlothen, said: “When we got to the funeral it looked like he had been beaten. His nose was broken. His jaw was broken. And his eye was swollen. It looked like he had a fractured skull. . . . So something’s not adding up.”8 8.May, supra note 2.Show More

* * *

Science and medicine have longstanding relationships with law and, in particular, law enforcement. Forensic scientists have worked with police investigators for many years to help understand crime scene evidence, and medical examiners have lent their knowledge of human anatomy and pathology to help investigators understand how mysterious deaths might have occurred. This intimate relationship between medical knowledge and legal procedures has been well documented.9 9.See, e.g., Radley Balko & Tucker Carrington, The Cadaver King and the Country Dentist, at xiv, xxii (2018) (noting that a single medical examiner testified in approximately 80% of Mississippi’s homicide cases over almost twenty years); Nigel McCrery, Silent Witnesses: The Often Gruesome but Always Fascinating History of Forensic Science, at xxiii (2014) (describing the impact of DNA testing on criminal adjudication around the world); Douglas Starr, The Killer of Little Shepherds: A True Crime Story and the Birth of Forensic Science 11–12 (2010) (explaining the origin of modern forensic science at the turn of the twentieth century).Show More However, less attention has been paid to how medical professionals might use their knowledge of science and medicine to participate in—and, at times, even conceal—unlawful uses of force by law enforcement that lead to community members’ harm and death. For example, in a recent article in the California Law Review, my co-author and I examined how paramedics have partnered with police to administer harsh drugs that have a sedative effect, also known as chemical restraints, on people who have been detained or arrested—many of whom are thought to be experiencing excited delirium.10 10.Osagie K. Obasogie & Anna Zaret, Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Calif. L. Rev. 1 (2021).Show More These drugs are often used not for the health and well-being of the person under arrest, but to assist law enforcement by easing their efforts at managing what are often thought to be unmanageable bodies. Chemical restraints, such as ketamine, have been increasingly employed by police and EMS responders in recent years and have led to unnecessary hospitalizations and deaths of detained people.11 11.Patty Nieberg, Elijah McClain Case Leads to Scrutiny of Ketamine’s Use During Arrests, Denv. Post (Aug. 22, 2020, 2:31 PM), https://www.denverpost.com/2020/08/22/elijah-mcclain-ketamine-police-arrests/ [https://perma.cc/34SE-PB9R]; see also Gregory Yee, Mount Pleasant Man’s Ketamine-Related Death in Police Custody Under Investigation, Post & Courier (Feb. 28, 2020), https://www.postandcourier.com/news/mount-pleasant-mans-ketamine-related-death-in-police-custody-under-investigation/article_8b07f4de-59ae-11ea-adad-2f0e6f56d779.html [https://perma.cc/3M86-SJSP]; John Croman, Man Files Lawsuit Over Ketamine Injection, KARE (July 14, 2018, 1:35 PM), https://www.kare11.com/article/news/man-files-lawsuit-over-ketamine-injection/89-573408858 [https://perma.cc/G3D4-86QS].Show More

The questionable relationship between medical professionals and law enforcement is not limited to chemical restraints. Medical examiners and coroners play a critical role in the legal system in providing the official cause of death when someone dies in police custody. Forensic pathologists are often relied upon by police and investigators to explain how an unusual or unexpected death might have occurred. Excited delirium, as a psychiatric disorder that is thought to place significant physical stress on people, appears to offer medical insight into what seems like an epidemic of people suffering from drug dependency or mental health crises dying without explanation.

There are at least three aspects of excited delirium that are unusual and worthy of exploration. First, excited delirium appears to be more common among Black people. Although studies on excited delirium are scant, data suggest that Black people are diagnosed as suffering from it at much higher rates than White people.12 12.See infra Subsection III.C.2.Show More Second, the disease strangely seems to happen when police are around. For example, a recent review in Florida Today showed that nearly two-thirds of the deaths in Florida officially listed as being caused by excited delirium over the past decade occurred while the decedent was in police custody or had some other interaction with law enforcement.13 13.Alessandro Marazzi Sassoon, Excited Delirium: Rare and Deadly Syndrome or a Condition to Excuse Deaths by Police?, Fla. Today (Jan. 30, 2020, 2:52 PM), https://www.floridatoday.com/in-depth/news/2019/10/24/excited-delirium-custody-deaths-gregory-edwards-melbourne-taser/2374304001/ [https://perma.cc/4M2A-5GE3].Show More Yet, this may be an undercount as other deaths that implicate police officers in Florida and across the country might be presumed to involve excited delirium without official designation or further investigation.14 14.One example where this occurred is the police killing of George Floyd. One officer at the scene, Thomas Lane, described his concern that Floyd might have experienced excited delirium while being restrained (and ultimately strangled to death) by Officer Derek Chauvin. See Steve Eckert & Jeremy Jojola, KARE 11 Investigates: Did Officers Fear George Floyd Had ‘Excited Delirium’?, KARE 11 (Apr. 13, 2021), https://www.kare11.com/article/‌news/investigations/kare-11-investigates-did-officers-fear-george-floyd-had-excited-delirium/89-f7cc01f2-427c-48ab-a4fe-3f414c3c2236. Given the troubling and inaccurate manner that Minneapolis police initially reported the confrontation between police and George Floyd—the headline of the police press release read “Man Dies After Medical Incident During Police Interaction”—excited delirium could have easily become part of the way that Floyd’s death was described, but for video of the incident and public outcry. See Eric Levenson, How Minneapolis Police First Described the Murder of George Floyd, and What We Know Now, CNN (Apr. 21, 2021), https://www.cnn.com/2021/04/21/us/minneapolis-police-george-floyd-death/index.html [https://perma.cc/6TQN-ZTGA]. Indeed, even after the video of Floyd’s murder and social unrest, excited delirium still emerged as a possible explanation of his death during Derek Chauvin’s trial. See Steve Karnowski, Explainer: Why ‘Excited Delirium’ Came Up at Chauvin Trial?, AP News (Apr. 19, 2021), https://apnews.com/article/health-death-of-george-floyd-trials-george-floyd-3b60b3930023a2668e7fc63f903fc3aa.Show More And lastly, and perhaps most strangely, excited delirium is not a psychiatric disorder that is recognized by most medical professionals. Professional organizations such as the American Psychiatric Association15 15.Press Release, Am. Psychiatric Ass’n, Position Statement on Concerns About Use of the Term ‘Excited Delirium’ and Appropriate Medical Management in Out-of-Hospital Contexts (Dec. 2020), https://www.psychiatry.org/File%20Library/About-APA/Organization‌-Documents-Policies/Policies/Position-Use-of-Term-Excited-Delirium.pdf [https://perma.cc/2HVX-2X3N].Show More and the American Medical Association16 16.Press Release, Am. Med. Ass’n, New AMA Policy Opposes ‘Excited Delirium’ Diagnosis (June 14, 2021), https://www.ama-assn.org/press-center/press-releases/new-ama-policy-opposes-excited-delirium-diagnosis [https://perma.cc/T9DP-6XPT].Show More have been extremely critical of the term and oppose its use. Medical guidebooks used to identify psychiatric conditions, such as the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) and the International Classification of Diseases (“ICD-10”), do not acknowledge it as a valid psychiatric disorder. Moreover, the peer-reviewed literature on excited delirium is rather thin; there is no clear articulation of causal mechanisms or pathways to support the notion that excited delirium has a distinct pathology that leads to death.

Nevertheless, excited delirium as a psychiatric diagnosis allows law enforcement to pathologize people’s behavior, justify the use of chemical or physical restraints (and even deadly force), or explain how someone might unexpectedly die while in custody. As one example, a recent investigation uncovered that paramedics in Colorado used a chemical restraint called ketamine to sedate 902 people who were thought to be experiencing excited delirium in pre-hospital (i.e., public) settings over a two-and-a-half year period.17 17.Michael de Yoanna & Rae Solomon, Medics in Colorado Dosed 902 People with Ketamine for ‘Excited Delirium’ in 2.5 Years, KUNC (July 21, 2020, 5:35 PM), https://www.kunc.org/news/2020-07-21/medics-in-colorado-dosed-902-people-with-ketamine-for-excited-delirium-in-2-5-years [https://perma.cc/5RUA-ZEJA].Show More This includes the death of Elijah McClain, a twenty-three-year-old Black man who was approached by police while walking down a street after a 911 caller said he “looked sketchy.”18 18.Lucy Tompkins, Here’s What You Need to Know About Elijah McClain’s Death, N.Y. Times (last updated Oct. 19, 2021), https://www.nytimes.com/article/who-was-elijah-mcclain.html [https://perma.cc/6CTY-S438].Show More Multiple officers tackled him and placed him in a chokehold. Paramedics injected him with ketamine when they arrived at the scene after the officers reported that McClain had “incredible, crazy strength” and was “definitely on something,”19 19.Id.Show More which were “signs they took not as a struggle to survive, but as symptoms of excited delirium.”20 20.John Dickerson, Excited Delirium: The Controversial Syndrome That Can Be Used to Protect Police from Misconduct Charges, 60 Minutes (Dec. 13, 2020), https://www.cbsnews.com/news/excited-delirium-police-custody-george-floyd-60-minutes-2020-12-13/ [https://perma.cc/98HM-799S].Show More The amount of ketamine injected into McClain was grossly inappropriate for his size,21 21.Brian Maass, Ketamine Dose for Elijah McClain ‘Too Much,’ Says Anesthesiologist, CBS4 Denv. (July 7, 2020, 11:59 PM), https://denver.cbslocal.com/2020/07/07/elijah-mcclain-ketamine-aurora-police-anesthesiologist/ [https://perma.cc/5DR6-TNML] (“Multiple anesthesiologists are questioning the amount of Ketamine, a widely employed sedative, used on Elijah McClain just before he stopped breathing last August, with one doctor saying it was, ‘Too much, twice too much.’”).Show More and McClain went into cardiac arrest in the ambulance on the way to the hospital. He died several days later.

The numbers from Colorado regarding the widespread use of ketamine in response to perceived episodes of excited delirium, along with evidence from other states, demonstrate that this unfounded medical diagnosis is having an increasing influence on: (1) how law enforcement assess and respond to people that they engage and their decision to use force; (2) how medical examiners and coroners classify the cause of death when police interactions have deadly endings; and (3) how courts review the appropriateness of police use of force when these matters are litigated as possible instances of excessive force that might violate the Fourth Amendment. This Article examines how excited delirium is being used in law, places these developments in a social and historical context, and provides an evidence-based set of recommendations on how law and policy should move forward.

This examination of excited delirium is closely connected to doctrinal issues regarding police use of force. Part II reviews the social context and community impact of police violence while also being attentive to the doctrinal evolutions that constitute modern use of force jurisprudence to show how law makes it difficult to hold police accountable when excessive force is used. Understanding the role of law in undermining accountability provides an important context for appreciating how excited delirium, as an ostensible medical diagnosis, became enmeshed in the legal system as an additional way to exculpate police officers of wrongdoing. Part III offers a close examination of the history of excited delirium and reviews the scientific evidence used to support it as a diagnosis. This Part ends with a discussion of an original empirical dataset that I collected on how excited delirium has been used to describe the cause of deaths that occur in police custody as reported in local newspapers over the past decade. Part IV continues this assessment by examining how excited delirium has been discussed in federal courts, mostly in constitutional tort cases pursuant to 42 U.S.C. § 1983. An examination of these cases demonstrates that federal courts often give weight and meaning to excited delirium that is not supported by the existing scientific evidence. Part V provides a series of recommendations on how federal courts, local police departments, and medical professionals (including coroners and medical examiners) should approach excited delirium. I then briefly conclude in Part VI.

  1. * Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health). B.A., Yale University; J.D., Columbia Law School; Ph.D., University of California, Berkeley. Many thanks to Amelia Dmowska, Hayley MacMillen, and Anna Zaret for their excellent research assistance. ↑

  2. Gerry May, Attorney Disputes Coroner’s Finding in Death of Tommie McGlothen, Jr. After Police Confrontation, KTBS (June 10, 2020), https://www.ktbs.com/news/‌3investigates/attorney-disputes-coroners-finding-in-death-of-tommie-mcglothen-jr-after-police-confrontation/article_f100f4a6-ab7b-11ea-9d9b-1b7fb00daba3.html [https://perma.cc/8SEX-6Y42]. ↑

  3. Gerry May, Shreveport Man Dies in Police Custody; Family Fears “Cover-Up,” KTBS (May 31, 2020), https://www.ktbs.com/news/shreveport-man-dies-in-police-custody-family-fears-cover-up/article_ef947450-a20a-11ea-ac9e-87e6f58f8b87.html [https://perma.cc/6ADP-6EFT]. ↑

  4. Gerald Herbert & Rebecca Santana, ‘Denied the Truth’ Says Son of Black Man Who Died in Custody, ABC News (June 12, 2020, 5:19 PM), https://abcnews.go.com/US/wireStory/‌denied-truth-son-black-man-died-custody-71222156 [https://perma.cc/G9ES-NMPP]. ↑

  5. KSLA Investigates Reveals Video of Tommie McGlothen’s Last Encounter with Police, KSLA (June 8, 2020, 4:58 PM), https://www.ksla.com/2020/06/08/ksla-investigates-reveals-video-tommie-mcglothens-last-encounter-with-police/ [https://perma.cc/J2WM-NPJZ]. ↑

  6. May, supra note 1. ↑

  7. Herbert & Santana, supra note 3; May, supra note 2. ↑

  8. Caddo Coroner: McGlothen’s Death Natural, Possibly Preventable, KSLA (June 9, 2020, 9:41 AM), https://www.ksla.com/2020/06/09/caddo-coroner-mcglothens-death-natural-possibly-preventable/ [https://perma.cc/QU2Q-25ZP]. In September 2020, four officers were charged with negligent homicide and malfeasance after Thoma “determined that Mr. McGlothen’s death ‘was preventable’ because the officers should have known he needed medical treatment.” Michael Levenson, Four Louisiana Officers Charged in Death of Black Man with Mental Illness, N.Y. Times, (Sept. 18, 2020), https://www.nytimes.com/2020/‌09/18/us/shreveport-police-officers-charged-death.html [https://perma.cc/X9D2-3FQ3]. ↑

  9. May, supra note 2. ↑

  10. See, e.g., Radley Balko & Tucker Carrington, The Cadaver King and the Country Dentist, at xiv, xxii (2018) (noting that a single medical examiner testified in approximately 80% of Mississippi’s homicide cases over almost twenty years); Nigel McCrery, Silent Witnesses: The Often Gruesome but Always Fascinating History of Forensic Science, at xxiii (2014) (describing the impact of DNA testing on criminal adjudication around the world); Douglas Starr, The Killer of Little Shepherds: A True Crime Story and the Birth of Forensic Science 11–12 (2010) (explaining the origin of modern forensic science at the turn of the twentieth century). ↑

  11. Osagie K. Obasogie & Anna Zaret, Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Calif. L. Rev. 1 (2021). ↑

  12. Patty Nieberg, Elijah McClain Case Leads to Scrutiny of Ketamine’s Use During Arrests, Denv. Post (Aug. 22, 2020, 2:31 PM), https://www.denverpost.com/2020/08/22/elijah-mcclain-ketamine-police-arrests/ [https://perma.cc/34SE-PB9R]; see also Gregory Yee, Mount Pleasant Man’s Ketamine-Related Death in Police Custody Under Investigation, Post & Courier (Feb. 28, 2020), https://www.postandcourier.com/news/mount-pleasant-mans-ketamine-related-death-in-police-custody-under-investigation/article_8b07f4de-59ae-11ea-adad-2f0e6f56d779.html [https://perma.cc/3M86-SJSP]; John Croman, Man Files Lawsuit Over Ketamine Injection, KARE (July 14, 2018, 1:35 PM), https://www.kare11.com/article/news/man-files-lawsuit-over-ketamine-injection/89-573408858 [https://perma.cc/G3D4-86QS]. ↑

  13. See infra Subsection III.C.2. ↑

  14. Alessandro Marazzi Sassoon, Excited Delirium: Rare and Deadly Syndrome or a Condition to Excuse Deaths by Police?, Fla. Today (Jan. 30, 2020, 2:52 PM), https://www.floridatoday.com/in-depth/news/2019/10/24/excited-delirium-custody-deaths-gregory-edwards-melbourne-taser/2374304001/ [https://perma.cc/4M2A-5GE3]. ↑

  15. One example where this occurred is the police killing of George Floyd. One officer at the scene, Thomas Lane, described his concern that Floyd might have experienced excited delirium while being restrained (and ultimately strangled to death) by Officer Derek Chauvin. See Steve Eckert & Jeremy Jojola, KARE 11 Investigates: Did Officers Fear George Floyd Had ‘Excited Delirium’?, KARE 11 (Apr. 13, 2021), https://www.kare11.com/article/‌news/investigations/kare-11-investigates-did-officers-fear-george-floyd-had-excited-delirium/89-f7cc01f2-427c-48ab-a4fe-3f414c3c2236. Given the troubling and inaccurate manner that Minneapolis police initially reported the confrontation between police and George Floyd—the headline of the police press release read “Man Dies After Medical Incident During Police Interaction”—excited delirium could have easily become part of the way that Floyd’s death was described, but for video of the incident and public outcry. See Eric Levenson, How Minneapolis Police First Described the Murder of George Floyd, and What We Know Now, CNN (Apr. 21, 2021), https://www.cnn.com/2021/04/21/us/minneapolis-police-george-floyd-death/index.html [https://perma.cc/6TQN-ZTGA]. Indeed, even after the video of Floyd’s murder and social unrest, excited delirium still emerged as a possible explanation of his death during Derek Chauvin’s trial. See Steve Karnowski, Explainer: Why ‘Excited Delirium’ Came Up at Chauvin Trial?, AP News (Apr. 19, 2021), https://apnews.com/article/health-death-of-george-floyd-trials-george-floyd-3b60b3930023a2668e7fc63f903fc3aa. ↑

  16. Press Release, Am. Psychiatric Ass’n, Position Statement on Concerns About Use of the Term ‘Excited Delirium’ and Appropriate Medical Management in Out-of-Hospital Contexts (Dec. 2020), https://www.psychiatry.org/File%20Library/About-APA/Organization‌-Documents-Policies/Policies/Position-Use-of-Term-Excited-Delirium.pdf [https://perma.cc/2HVX-2X3N]. ↑

  17. Press Release, Am. Med. Ass’n, New AMA Policy Opposes ‘Excited Delirium’ Diagnosis (June 14, 2021), https://www.ama-assn.org/press-center/press-releases/new-ama-policy-opposes-excited-delirium-diagnosis [https://perma.cc/T9DP-6XPT]. ↑

  18. Michael de Yoanna & Rae Solomon, Medics in Colorado Dosed 902 People with Ketamine for ‘Excited Delirium’ in 2.5 Years, KUNC (July 21, 2020, 5:35 PM), https://www.kunc.org/news/2020-07-21/medics-in-colorado-dosed-902-people-with-ketamine-for-excited-delirium-in-2-5-years [https://perma.cc/5RUA-ZEJA]. ↑

  19. Lucy Tompkins, Here’s What You Need to Know About Elijah McClain’s Death, N.Y. Times (last updated Oct. 19, 2021), https://www.nytimes.com/article/who-was-elijah-mcclain.html [https://perma.cc/6CTY-S438]. ↑

  20. Id. ↑

  21. John Dickerson, Excited Delirium: The Controversial Syndrome That Can Be Used to Protect Police from Misconduct Charges, 60 Minutes (Dec. 13, 2020), https://www.cbsnews.com/news/excited-delirium-police-custody-george-floyd-60-minutes-2020-12-13/ [https://perma.cc/98HM-799S]. ↑

  22. Brian Maass, Ketamine Dose for Elijah McClain ‘Too Much,’ Says Anesthesiologist, CBS4 Denv. (July 7, 2020, 11:59 PM), https://denver.cbslocal.com/2020/07/07/elijah-mcclain-ketamine-aurora-police-anesthesiologist/ [https://perma.cc/5DR6-TNML] (“Multiple anesthesiologists are questioning the amount of Ketamine, a widely employed sedative, used on Elijah McClain just before he stopped breathing last August, with one doctor saying it was, ‘Too much, twice too much.’”). ↑

Liberalism and Disagreement in American Constitutional Theory

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. ↑

©Virginia Law Review Association. All rights reserved.