To put the point anothe way, the justification for using a written Constitution, and original intentions, should not be sectarian. It should-if possible--not depend on a particular conception of what it is to be an American. It should be something that can appeal to any reasonable member of our society today, even to people who reject (if they have reasons for doing so)the moral vision of earlier generations. The way to try to develop such a conception, I believe, is to recognize that the intuitive appeal of Jeffersons principle-that no generation has a right to bind another-rests, implicitly, on too narrow a view of the role of law Specifically, it overlooks important ways in which the decisions of earlier generations can be binding today even in the absence of any kind of obligation of obedience-either the straightforward obligation of a subordinate to a superior, or the more complex idea of"fidelity" to an earlier generation. There are at least two other possible reasons why one might care about what earlier generations did First, a decision made by an earlier generation might serve as a precedent. In a common law system, precedents from earlier eras bind to a degree. Nevertheless, the problem Jefferson identified is greatly ameliorated in a common law system, or so I shall argue shortly. And the justification for following precedent need not rely on any notion of intergenerational identity or intergenerational obligation. There are sensible reasons why any rational person would be reluctant to depart from well-established practices that were endorsed, after due consideration, by people in the past when they were confronted with similar issues Second, an earlier generations decision-especially when it is embodied in an authoritative text-can serve as readily-accepted common
5 To put the point anothe way, the justification for using a written Constitution, and original intentions, should not be sectarian. It should—if possible—not depend on a particular conception of what it is to be an American. It should be something that can appeal to any reasonable member of our society today, even to people who reject (if they have reasons for doing so) the moral vision of earlier generations. The way to try to develop such a conception, I believe, is to recognize that the intuitive appeal of Jefferson’s principle—that no generation has a right to bind another—rests, implicitly, on too narrow a view of the role of law. Specifically, it overlooks important ways in which the decisions of earlier generations can be binding today even in the absence of any kind of obligation of obedience—either the straightforward obligation of a subordinate to a superior, or the more complex idea of “fidelity” to an earlier generation. There are at least two other possible reasons why one might care about what earlier generations did. First, a decision made by an earlier generation might serve as a precedent. In a common law system, precedents from earlier eras bind to a degree. Nevertheless, the problem Jefferson identified is greatly ameliorated in a common law system, or so I shall argue shortly. And the justification for following precedent need not rely on any notion of intergenerational identity or intergenerational obligation. There are sensible reasons why any rational person would be reluctant to depart from well-established practices that were endorsed, after due consideration, by people in the past when they were confronted with similar issues. Second, an earlier generation’s decision—especially when it is embodied in an authoritative text—can serve as readily-accepted common
ground among people who otherwise disagree. 7 Sometimes, in the familiar formulation, it is more important that things be settled than that they be settled right. A legal provision can settle things, and sometimes the importance of settlement alone is enough to make the provision binding The binding force of the provision rests on its functional ability to settle disputes, and not at all on whether the entity that enacted the provision is entitled to obedience or“ fidelity.” Accepting the common law and common ground answers to Jeffersons argument does not require one to reject the other kinds of answers that have been offered. In particular the common law and common ground arguments are not inconsistent with the notion of intergenerational identity-the idea that part of being an American is honoring the decisions of earlier generations of Americans. One can hold a particular view of the importance of the Constitution in defining American identity and also accept the common law and common ground justifications. In fact, an intergenerational conception of the political community provides an additional reason for accepting those justifications A conception of English identity was an important part of the early common lawyers’ ideology8 But the common law and common ground justifications do not depend on any particular conception of American identity, any more than one has to accept the common lawyers'elaborate ideas about "the ancient constitution"of England in order to accept the common law of property or contract. The common law and common ground justifications for 7See, e.g., Michelman in Alexander, ed 8See, e. g, Pocock, The Ancient Law and the Constitution
6 ground among people who otherwise disagree.7 Sometimes, in the familiar formulation, it is more important that things be settled than that they be settled right. A legal provision can settle things, and sometimes the importance of settlement alone is enough to make the provision binding. The binding force of the provision rests on its functional ability to settle disputes, and not at all on whether the entity that enacted the provision is entitled to obedience or “fidelity.” Accepting the common law and common ground answers to Jefferson’s argument does not require one to reject the other kinds of answers that have been offered. In particular, the common law and common ground arguments are not inconsistent with the notion of intergenerational identity—the idea that part of being an American is honoring the decisions of earlier generations of Americans. One can hold a particular view of the importance of the Constitution in defining American identity and also accept the common law and common ground justifications. In fact, an intergenerational conception of the political community provides an additional reason for accepting those justifications. A conception of English identity was an important part of the early common lawyers’ ideology.8 But the common law and common ground justifications do not depend on any particular conception of American identity, any more than one has to accept the common lawyers’ elaborate ideas about “the ancient constitution” of England in order to accept the common law of property or contract. The common law and common ground justifications for 7See, e.g., Michelman in Alexander, ed. 8See, e.g., Pocock, The Ancient Law and the Constitution
constitutional obligation rely on arguments that should appeal to all reasonably members of the political community. The idea here is, of course Rawls's notion of the"overlapping consensus": people who have different ideas about intergenerational obligation, or American identity-or who reject such notions altogether--should still be able to say that the common ground and common law justifications make sense In this paper I will try to develop the common law and common ground justifications for adhering to the decisions of earlier generations These justifications, I think, answer Jeffersons question in a way that does not require people to accept a controversial conception of American quasi- ethnic identity. But these justifications also do not require people to be skeptical about such conceptions. People can go in different directions when they define"what it is to be an American, while all accepting the common law and common ground justifications for adhering to the Constitution That is the aspiration, in any event On a more concrete level, I will reach a few specific conclusions that might seem odd at first glance but that in fact are both plausible and fully in accord with our established practices. In fact, it is a strength of the common law and common ground justifications that it supports aspects of the legal culture that seem firmly rooted but that are very difficult to explain. For example, I will defend what might be seen as a kind of verbal fetishism: an attachment to the specific language of the Constitution, even if the language is being used for purposes that are unquestionably at variance with those of the people who drafted the language I will also defend what is commonly called law-office history: the selective use of historical sources to support a conclusion reached on other grounds, as
7 constitutional obligation rely on arguments that should appeal to all reasonably members of the political community. The idea here is, of course, Rawls’s notion of the “overlapping consensus”: people who have different ideas about intergenerational obligation, or American identity—or who reject such notions altogether—should still be able to say that the common ground and common law justifications make sense. In this paper I will try to develop the common law and common ground justifications for adhering to the decisions of earlier generations. These justifications, I think, answer Jefferson’s question in a way that does not require people to accept a controversial conception of American quasiethnic identity. But these justifications also do not require people to be skeptical about such conceptions. People can go in different directions when they define “what it is to be an American,” while all accepting the common law and common ground justifications for adhering to the Constitution. That is the aspiration, in any event. On a more concrete level, I will reach a few specific conclusions that might seem odd at first glance but that in fact are both plausible and fully in accord with our established practices. In fact, it is a strength of the common law and common ground justifications that it supports aspects of the legal culture that seem firmly rooted but that are very difficult to explain. For example, I will defend what might be seen as a kind of verbal fetishism: an attachment to the specific language of the Constitution, even if the language is being used for purposes that are unquestionably at variance with those of the people who drafted the language. I will also defend what is commonly called law-office history: the selective use of historical sources to support a conclusion reached on other grounds, as
opposed to historians history-a genuine effort to understand, in context, an earlier time. I will also suggest that, in interpreting the Constitution, the text of the document matters most for the questions that are least important. Finally, I will defend a version of Jefferson's view of majoritarianism: the idea is that a majoritys decision governs for a while but recedes as time passes Why Not sunset? Before doing so, it is worth considering Jeffersons own solution-that there should be an automatic sunset provision applied to all laws. In fact this solution only makes things worse. But at the same time it reveals two important things about the structure of the problem that Jefferson posed: it can be solved only by introducing an intertemporal element into interpretation, and that intertemporal element must be able to operate gradually over time The immediate difficulty with Jeffersons sunset solution is that it is hard to see how one can specify a non-arbitrary term of years for a provision to remain in effect. Jeffersons calculation that the magic period is 19 years is quite strange. But this difficulty is derivative of a deeper problem: What should the law revert to after a provision has expired? The law that existed before the provision was adopted is the product of an even earlier generation; there is, if anything, even less reason to impose that earlier law on the current generation. Ideally, after a provision expires, the law should become something that the current generation itself endorses. But how do we determine what that is? 8
8 opposed to historians’ history—a genuine effort to understand, in context, an earlier time. I will also suggest that, in interpreting the Constitution, the text of the document matters most for the questions that are least important. Finally, I will defend a version of Jefferson’s view of majoritarianism: the idea is that a majority’s decision governs for a while, but recedes as time passes. Why Not Sunset? Before doing so, it is worth considering Jefferson’s own solution—that there should be an automatic sunset provision applied to all laws. In fact this solution only makes things worse. But at the same time it reveals two important things about the structure of the problem that Jefferson posed: it can be solved only by introducing an intertemporal element into interpretation, and that intertemporal element must be able to operate gradually over time. The immediate difficulty with Jefferson’s sunset solution is that it is hard to see how one can specify a non-arbitrary term of years for a provision to remain in effect. Jefferson’s calculation that the magic period is 19 years is quite strange. But this difficulty is derivative of a deeper problem: What should the law revert to after a provision has expired? The law that existed before the provision was adopted is the product of an even earlier generation; there is, if anything, even less reason to impose that earlier law on the current generation. Ideally, after a provision expires, the law should become something that the current generation itself endorses. But how do we determine what that is?
Jefferson himself explained why it is so difficult to keep the law up to date, in the course of rejecting the argument that"the succeeding generationI]s.. power [to] repeal"a provision"leaves them as free as if the constitution or law had been expressly limited to 19 years only. "The power to repeal a law does not protect a later generation from the impositions of an earlier generation ITThe power of repeal is not an equivalent [to mandatory expiration] It might indeed be if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative propostion Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interest of their practical man that a law of limited duration is much more very constituents; and other impediments arise so as to manageable than one which needs a repeal These familiar problems of legislative intertia and public choice will plague efforts to replace an expired law with something reflecting the current generations views. Perhaps even after much more than Jeffersons 19 years, a majority of the society--composed of some survivors of the older generation that voted on the law and some members of the new generation that did not-want the old law to continue in effect. Or perhaps the view of the new majority is that the law should be modified, but not wiped from the books. The Civil Rights Act of 1964, for example, must be viewed today as the product of an earlier generation, and not just in a chronological sense. But simply"sunsetting "the Act-reverting to the pre- 1964 status quo-would surely be less in keeping with the current generations views than the 1964 Act is Given the problems Jefferson identified with relying on repeals, we could not view the failure to reenact the old law as a reliable indication that a current majority rejects it. And
9 Jefferson himself explained why it is so difficult to keep the law up to date, in the course of rejecting the argument that “the succeeding generation[’]s . . . power [to] repeal” a provision “leaves them as free as if the constitution or law had been expressly limited to 19 years only.” The power to repeal a law does not protect a later generation from the impositions of an earlier generation: [T]he power of repeal is not an equivalent [to mandatory expiration]. It might indeed be if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative propostion. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interest of their constituents; and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal. These familiar problems of legislative intertia and public choice will plague efforts to replace an expired law with something reflecting the current generation’s views. Perhaps even after much more than Jefferson’s 19 years, a majority of the society—composed of some survivors of the older generation that voted on the law and some members of the new generation that did not—want the old law to continue in effect. Or perhaps the view of the new majority is that the law should be modified, but not wiped from the books. The Civil Rights Act of 1964, for example, must be viewed today as the product of an earlier generation, and not just in a chronological sense. But simply “sunsetting” the Act—reverting to the pre- 1964 status quo—would surely be less in keeping with the current generation’s views than the 1964 Act is. Given the problems Jefferson identified with relying on repeals, we could not view the failure to reenact the old law as a reliable indication that a current majority rejects it. And