Legal Commentary

As Keith Whittington tells it, the founders deliberately chose a written constitution for two reasons. First, only a written document could be presented to the sovereign people for ratification and thus provide a popular check on the actions of government officials. Second, only a written constitution could guard against the evils the founders had come to associate with the unwritten British constitution?chiefly, uncertainty and mutability in the face of political temptation. To serve either of these purposes, however, the meaning of a written constitution had to be fixed at the date it was authoritatively ratified by the people. Otherwise, the Constitution would cease to embody the will of the people and cease to provide a fixed bulwark against abuse by their governmental agents. For these reasons, Whittington argues, only an originalist approach to constitutional interpretation is consistent with the founders? embrace of a written constitution.

So stated, Whittington?s argument appears to rest entirely on the authority of the founders? reasons for embracing a written constitution, which he offers no independent justification for treating as authoritative. Whittington is sensitive to this issue, however, and expressly disclaims any argument from authority. Rather, he suggests, we should look to the founding ?in search of other people who have thought about ? whether or not to have a written constitution and thus may be expected to have considered the matter in depth.? In so doing, he emphasizes that the arguments and historical purposes of the founders ?have weight because of their content, not their source.?

This acknowledgment insulates Whittington?s argument against charges of boot-strapping, but it creates two other problems. First, if it is truly the content and not the source of the founders? reasoning that matters, that content is essentially identical to the hotly contested popular sovereignty and rule of law arguments for originalism. This does not mean we should not take it seriously, but it does mean writtenness is doing little if any independent work. Second, relying on the founders? arguments from popular sovereignty and constraint is even more problematic than relying on contemporary arguments of this sort because the founders were operating in a very different legal, historical, and political context. They were debating a new constitution; contemporary theorists are debating a very old one. That means the most powerful objection to the popular sovereignty argument?the dead hand problem?was much less of an issue for the founders than it is for contemporary originalists. The founders were also operating in a new nation at a time of severe political and social instability; contemporary theorists are operating in a comparatively stable and deeply rooted political and social order. For this reason, fixed constitutional constraints probably seemed more pressing to the founders than they do in today?s mature democracy, which has many other resources?legal and otherwise?for restraining abuses of government power.

In short, the perceived connection of writtenness to originalism in the founding era offers no compelling reason for believing that writtenness entails originalism today. It is either an argument from authority based on the very authority it is supposed to justify?a classic case of bootstrapping?or it collapses into an even weaker version of the conventional arguments from popular sovereignty and fixed constitutional constraints. Either way, writtenness alone tells contemporary interpreters nothing about which interpretive approach to adopt.