Dispatches from the Creation Wars

Kuznicki, Sandefur and Liberal Originalism

Jason Kuznicki has followed my lead in giving a positive review to Timothy Sandefur’s recent article on liberal originalism in the Harvard Journal of Law and Public Policy. Incidentally, Jon Rowe agreed with us as well. Mr. Sandefur sent copies of the article to the three of us (and perhaps others) and we all agree that he has written a very valuable contribution to the debates over original intent. Indeed, I think we are seeing the beginnings of what could be a serious movement in constitutional theory, as scholars like Sandefur, Randy Barnett, Scott Alan Gerber and a few others map out a powerful framework within which to interpret Constitutional questions that successfully distinguishes itself from the conservative-dominated originalism of Robert Bork and his ideological fellow travelers (and frankly I regard Bork’s pose of originalism as being approximately as authentic as MC Hammer’s gangsta phase) and the more liberal-dominated “living constitutionalists”.

There are some subtle disagreements among us on some of the particulars, naturally, just as there are among conservative originalists. I am intrigued by Kuznicki’s take on the question of whether the founders would have wanted us to rely so heavily upon their particular judgements:

“The ancients had no ancients,” Diderot famously asked, “so what did they do?”

And our founders would likely have agreed. Jefferson famously excised all miracles from his copy of the King James Bible; as a rationalist and a deist, he considered such stories to be needless embellishments.

It is high time that we dispense with the idea that our Constitution is a miracle, and that it is subject, as it were, to a fundamentalist interpretation: The Constitution is certainly a wonderful achievement, but it was written by the people, enacted by the people–and now, the people must maintain it.

After all, we have ample reason to expect that own judgments about the meaning of the Constitution–and about the meaning of ordered liberty–should be better than those of our founders. We have all of their knowledge to draw from, and more than two centuries of practical experience besides. Their genius was to imagine a government based on individual rights–ours is that we have lived in one.

This is certainly true of Jefferson, who famously called for a new constitutional convention every generation and said that to expect a society to maintain the same constitution longer than that was like an adult continuing to wear the coat he had as a child. I tend to disagree with him here. I think a written constitution that is difficult to amend is enormously important in maintaining a stable free society. But I also think it is important that we seek to apply the broad vision of the Declaration to specific issues that the founders themselves, through social convention or political necessity, would not have applied them to.

The whole history of America can be viewed as the continued broadening of the application of the broad principles of the Declaration, first to blacks and then to women and now, increasingly, to homosexuals. This can only be regarded as a positive thing. The Declaration was, in some ways, a more radical document than even many of the men who signed it realized at the time. Kuznicki also adds his expertise in French history to combat one of the arguments against the Declaration, advanced by Russell Kirk, that the Declaration was not meant to be taken seriously as an expression of the political philosophy of the founders because it was merely “meant to persuade the court of France, and the philosophes of Paris, that the Americans were sufficently un-English to deserve military assistance”:

In 1776, France was still an absolute monarchy. Ideas of social contract and natural rights were popular with many French intellectuals of the day, but the French royal ideology was emphatically based upon the divine right of kings. The French government unquestionably participated in some strains of the Enlightenment–but it abhorred this one.

When the French had their own Revolution just thirteen years later, the official machinery of the government turned emphatically against even the watered-down social contractarianism proposed in 1789. Although the French Revolution grew much more radical in subsequent years, its early manifestations had about them only the faintest hints of what was to come. And still, all major branches of the French government outside the Third Estate rejected these reforms.

The same king who reigned in 1776, along with largely the same parlement, the same nobility, and many of the same ministers–all of them agreed that even an attenuated social contract theory was unacceptable.

It is absurd to think that these officials were eager, just thirteen years earlier, to support a radical and untested Lockean experiment. Official France supported the Americans merely to spite the English, who had recently defeated the French quite badly in the Seven Years’ War. Individuals like Lafayette may well have been attracted to the radicalism of the American Revolution, but pure realpolitik was what determined the official French response.

Conservatives no doubt find it convenient to pin American libertarianism upon the French Revolution (never mind the chronology!) and thereby dispose of it. After all, anything that can be associated with France is automatically bad. But it won’t work in this case, and not merely because of the chronology. When the French intervened on the American side, they did it purely out of self-interest, and not because they shared our ideals.

I particularly like how Kuznicki sums up the following passage from Sandefur:

The Declaration is adaptable to new circumstances. This resembles “living constitutionalism,” which is one reason that conservative originalists reject this interpretation. In their view, such adaptation threatens the moral stability of society… [But the view of liberal originalists] differs from the leftist notion of living constitutionalism precisely in its appeal to unchanging principles underlying the Constitution: where the leftist theory of living constitutionalism sees the principles of good government–if not the very nature of human beings themselves–as malleable and subject to progressive change, liberal originalism sees the principles of equality and the entitlement to liberty as unchanging, even though their applicability to particular circumstances might evolve.

Kuznicki’s summation:

In other words, we stand on the shoulders of giants. We see further than they, and we are obliged to correct their errors, to hold ourselves more true to their principles than even they themselves had been. And such action is not merely permitted. It’s precisely what the giants themselves would have wanted us to do.

Very well said by both gentlemen. And here again I am reminded of why I am so pleased at how this little community of minds has grown, with so many bright people of differing strengths and fields of study (and a few amateur freelancers like me) sharing their ideas, debating them in a civil and gentlemanly manner, and building friendships. There is much more in Jason’s review that is worth reading, so please go there and read the whole thing. And if you can get your hands on a copy of the Spring 2004 HJLPP to see the article being reviewed, it’s well worth the effort.


  1. #1 Perry Willis
    September 27, 2004

    It’s good that this material is being published in scholarly journals. During our FEC lawsuit one of our attorneys kept telling us that scholarly publication is very important for advancing new (or revived) constitutional arguments in court. We didn’t have the time to do that for our “freedom of the press” argument, though Scalia and Thomas both made our argument the heart of their own dissenting opinions.

    Unfortunately, the majority decision in the BCRA case highlighted a disturbing trend in constitutional issues — the so-called liberal side of the court is making increased use of foreign laws, precedents, etc., to arrive at their own decisions. This is the opposite side of the scholarly coin. It’s going to be very hard to win the battle for original meaning, liberal or otherwise, but it sure is a battle worth fighting.