Legal Commentary

Arguments about the nature of judicial review and appropriate methods of judicial interpretation based on the ?writtenness? of the Constitution date back at least to Marbury v. Madison. In recent years, originalists ranging from Jack Balkin to Keith Whittington to Randy Barnett have argued in varying fashion that an originalist interpretive approach follows logically from ?our commitment to a written constitution.? Perhaps the most common (though not the strongest) version of this argument holds that only originalism is consistent with the primary purpose of written constitutions?namely to subject the power of judges and, through them, other government officials, to fixed constitutional constraints. The echo of Marbury should be obvious. There, Chief Justice Marshall asked, ?[T]o what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?? Contemporary originalists ask, ?To what purpose do we hold our government officials to written constitutional limitations, if the content of those limitations evolves over time according to the interpretations of the very officials intended to be restrained??

This argument may or may not be persuasive on its own terms. There is no reason in principle that a written constitution should be any more or less flexible?any more or less constraining?than an unwritten constitution. That depends on the content of the constitution, as understood by contemporary interpreters, as well as the accepted modes of constitutional revision, neither of which is linked in any necessary way to the formal medium in which a constitution is expressed. But even if a written constitution, interpreted according to originalist methods, is an essential prerequisite for the existence of fixed constitutional constraints, it remains to be shown that fixed constitutional constraints are normatively preferable to the available alternatives.

Here the argument from writtenness runs into all the objections commonly advanced against the standard constraint-based defenses of originalism: Original meaning is frequently ambiguous, limiting its power to constrain judges and other officials, even if those officials are acting in good faith and free of subconscious bias?both, of course, generous assumptions. In fact, the history invoked in originalist opinions may give an insidious veneer of objectivity and passivity to judicial decisions that are in reality the product of political choices. More fundamentally, original meaning is hardly the only available constraint on official power. Judicial precedent, political process theories, or the Holmesian puke test might serve equally well, especially in light of the many institutional and political constraints that operate independently of any theory of constitutional interpretation. Finally, even if these alternatives prove less effective than originalism qua constraint, one or more of them might produce better substantive results, on balance, than unswerving adherence to original meaning.

For purposes of this post, I have no interest in passing judgment on these objections. The critics might be right. But original meaning also might be more determinate or more substantively attractive (compared to the plausible alternatives) than the critics of originalism have supposed. The important point is that everything turns on these questions and virtually nothing on the argument from writtenness. If original meaning is the most effective and substantively attractive constraint available, judges should interpret the constitutional text according to its original meaning to the extent possible. If not, they should employ whatever alternative approach satisfies this criterion. Writtenness is simply a nonfactor.