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Original Reasons for Non-Originalism

By Tom W. Bell and Glen Whitman

Although some of my closest friends might respond with expressions of fury and disappointment, I am coming out of the closet on originalism. I am not convinced that we should interpret the Constitution's text to mean what those who ratified it thought it meant, over 200 years ago. Instead, I think we should favor the plain, present, public meaning of the Constitution's text, resolving any ambiguities in favor of individual liberty.

Given the popularity of originalism among self-proclaimed libertarians and conservatives, my view risks raising some hackles among the very people with whom I so often agree in questions about the constitutional limits on government action. So be it. Originalism's foundations have always seemed pretty shaky, to me, even though I usually like the theory's results. It has taken me some years to formulate a different, and I think much more solid, foundation for resolving questions of constitutional meaning. I describe that new approach in a working paper, Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF]. For a snapshot view of the theory, consider this figure from the paper:

That may look familiar, given that I earlier blogged about The Scale of Consent, a working paper that, in revised form, constitutes one part of this larger paper. Rest assured, though, that this later work has a different, and more ambitious goal. Here is the abstract:

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we can outline a theory of graduated consent. This article concludes by testing a graduated consent theory against such problems as enforcing standardized agreements, justifying political coercion, and reading a constitution. In those and other applications, a theory of graduated consent can help to advance legal, moral, and economic reasoning.

If I don't sidelined by other, more pressing obligations, I'll post here some excerpts from Graduated Consent Theory. It offers a number of original (but not originalist!) arguments, which I'd like to air for commentary. I plan to publish the paper in a law review and want to make sure the best possible version makes it into print.

Full post as published by Agoraphilia on March 15, 2009 (boomark / email).