Academic

Oman & Horwitz on Constitutional Piety

By Lawrence Solum

Nate Oman has a nice post entitled Originalism and the Virtue of Constitutional Piety at Concurring Opinions, with a good reply by Paul Horwitz at Prawfs.  Here is a taste of Oman:

One of the great insights of Burke is that habits and prejudices matter to a tremendous degree, providing a kind of ballast to the polity that we throw overboard in a storm at our peril. He was particularly withering, of course, in his denunciation of pointy headed intellectuals (I swear he uses that phrase some place) who want to cut through popular pieties in the name of reason and clarity. Holmes and the Realists had a point when they insisted that much of legal discourse is transcendental nonsense that ought to be replaced by a more honest and clear headed kind of judging. The acids of functionalism, however, are hard on popular piety. If we want the constitution to act as a real bulwark against this or that popular whim, then it seems to me that it needs something of the mysterium tremendum, a sense of the sacred that ought not to be profaned by transgression.

And from Horwitz:

Nate's commenters almost immediately respond by talking about originalism as an interpretive method.  That seems to me to miss the point.  Although he does try to distinguish this from constitutional piety in his first paragraph, I do think these comments echo my own first reaction to Nate's post: that it tends somewhat to conflate the question of respect for the framers with the question of originalism as an interpretive method.  So let's be clear:  There is a world of difference between constitutional piety -- that is, an approach or attitude to constitutional interpretation based on respect for the framers -- and the current judicial/academic version of originalism as an interpretive method.  For one thing, originalism is not based on respect for the framers as such; instead, it's grounded in a different set of arguments, usually centered around contractarianism, or legitimacy, or arguments about what constitutes a valid approach to legal interpretation.  Second, originalism no longer focuses on the original intent of the framers or anything like it; rather, as Heller reminds us, it focuses on the original public meaning of the constitutional text.

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Full post as published by Legal Theory Blog on July 17, 2008 (boomark / email).