Abstract
To understand how privacy became a component of modern constitutional doctrine, it’s essential to consider two issues related to interpretation of the text—the framers’ conception of it as a plan of government and their openness to interpretive supplementation of its terms. Numerous Federalist essays characterize the Constitution as a plan of government. Dictionaries of the time distinguished between two different senses of the word plan. On the one hand, they refer to it as plans as draughts—i.e., as precise frameworks (of the kind architects draw when designing buildings). On the other hand, they refer to it as plans as schemes—as relatively loose frameworks that are susceptible to interpretative supplementation in light of developments not anticipated at the outset. There is no doubt that Jefferson and some other members of the founding generation endorsed the former conception of the Constitution. But there is also no doubt that Jefferson accepted interpretive supplementation once he became president, for even though he stated that he wanted to sponsor a constitutional amendment to legitimate the Louisiana Purchase, Jefferson justified the purchase on the ground that the text supports national expansion (its silence on the issue notwithstanding). Madison was even more open to interpretive supplementation. Although he initially opposed legislation creating a national bank, he ultimately reversed himself on this issue and signed the legislation, while serving as president, extending the bank’s charter. Madison’s rationale for signing the legislation set a precedent in favor of interpretive supplementation. It also serves as a criterion for assessing the legitimacy of an interpretive initiative undertaken in the absence of Article V authorization. If supplementation is consistent with the general purposes of government and supported by an enduring supermajority national consensus, then it is acceptable to bypass the amendment process and to settle instead for an interpretation that assesses the legitimacy of government action. This Madisonian framework for assessing the legitimacy of interpretive supplementation is employed throughout the book to assess—and, in most instances—to justify pro-privacy decisions reached by the modern Court.
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Notes
- 1.
Universal Declaration of Human Rights, Article XII.
- 2.
European Convention on Human Rights, Article VIII.
- 3.
See Alaska Constitution, Article I, Section 22; Arizona Constitution, Article II, Section 8; California Constitution, Article I, Section 1; Florida Constitution, Article I, Section 23; Hawaii Constitution, Article I, Section 6; Illinois Constitution, Article I, Section 6; Louisiana Constitution, Article I, Section 5; Montana Constitution, Article II, Section 10; South Carolina Constitution, Article I, Section 10; and Washington Constitution, Article I, Section 7.
- 4.
California State Constitution, Article I, Section 1.
- 5.
See, e.g., Mark Janis et al., European Human Rights Law 437–56 (3rd ed. 2008).
- 6.
The Federalist 39 (James Madison) in The Federalist Papers 421 (Clinton Rossiter, ed., 1961).
- 7.
Jefferson to Wilson Cary Nicholas, September 7, 1803 in 8 The Works of Thomas Jefferson 247 (Paul Ford, ed., 1894).
- 8.
Jefferson Draft Amendment, supra note 7, at 10 Works 3–4.
- 9.
Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1857).
- 10.
Articles of Confederation, Article XI.
- 11.
Gouverneur Morris commented on the Convention’s awareness of the possibility of national expansion. See Max Farrand, The Framing of the Constitution of the United States 143–4 (2000).
- 12.
See Jefferson to John Colvin, September 20, 1810, supra note 7, at 11 Works 146.
- 13.
2 Samuel Johnson, A Dictionary of the English Language 354 (2nd ed. 1755).
- 14.
Noah Webster, American Dictionary of the English Language (1828) at http://mshaffer.com/d/word/plan.
- 15.
See Allen Snyder, Defining Noah Webster 80–1 (2002).
- 16.
1 Johnson, supra note 13, at 96.
- 17.
Webster, supra note 14, at afterthought.
- 18.
For the Madison/Tucker exchange, see The Debates and Proceedings in the Congress of the United States 790 (Joseph Gales, ed., 1834 [August 18, 1789]). For analysis of Tucker’s role in the Antifederalist critique of the Constitution even after its adoption, see Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government 129 (2016).
- 19.
See Wilson’s remarks to the Pennsylvania Ratifying Convention, as recorded in 2 The Debates in the Several State Ratifying Conventions on the Adoption of the Federal Constitution 434–7 (Jonathan Elliott, ed., 1836).
- 20.
See The Federalist 84 (Alexander Hamilton), supra note 6, at 512–3.
- 21.
U.S. Constitution, Amendment IX.
- 22.
Madison in Gales, ed., supra note 19, at 456 (June 8, 1789).
- 23.
The Federalist 49 (James Madison), supra note 6, at 313–4.
- 24.
The Federalist 37 (James Madison), supra note 6, at 229.
- 25.
Id.
- 26.
The argument advanced here is somewhat weaker with respect to rights than the one Randy Barnett proposes, but it is considerably stronger than the one he proposes with respect to powers. Concerning the former, Barnett remarks: “The original meaning of the terms of the Constitution as amended—such as the Ninth Amendment or the Privileges or Immunities Clause [of the Fourteenth Amendment]—might well authorize supplementation of its express terms in ways that do not contradict their original meaning” (Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty 108 (2004)). I have argued that the Ninth Amendment can’t be said to authorize supplementation, though I have noted that, on one possible reading, it seems to conceive this as possible. See supra notes 19–20 and accompanying text.
On the other hand, in speaking of the premise of incomplete textual specification as an interpretive device that can be brought to bear on the text, I have considered the possibility of supplementation of the enumeration of powers as well as rights. Barnett does not. His discussion of the necessary and proper clause (in id. 153–90) contains nothing concerning powers that’s comparable to his comment concerning the text’s implicit authorization of the enumeration of rights. As my comments later in this chapter make clear, I think that the logic of powers-supplementation is not identical to the logic of rights-supplementation. But I also think that the premise of incomplete specification is pertinent generally to powers as well as rights. The text, in other words, is suggestive of both possibilities.
- 27.
See Myers v. United States, 272 U.S. 52 (1926).
- 28.
See Downes v. Bidwell, 182 U.S. 244 (1901).
- 29.
See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
- 30.
See Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871).
- 31.
See Cooper v. Aaron, 358 U.S. 1 (1958).
- 32.
See The Passenger Cases, 48 U.S. (7 How.) 283 (1849).
- 33.
James Madison, February 2, 1791 Speech on the Bank, Legislative and Documentary History of the Bank of the United States 42 (Matthew St. Clair Clarke and David Hall, eds., 1832).
- 34.
Alexander Hamilton, Opinion on the Constitutionality of the Bank, February 23, 1791, in id. 96 (emphasis in original).
- 35.
Madison to Lafayette, November 1826, in 3 Letters & Other Writings of James Madison 542 (1884). A further word is in order here concerning the internal consistency of Madison’s approach to constitutional interpretation. In quoting Madison’s 1791 speech opposing a bank charter, Randy Barnett correctly argues that Madison claimed that the necessary and proper clause should be read in light of the Ninth and Tenth Amendments—and that all of these place limits on the exercise of federal power so substantial as to make a bank charter (and numerous other federal initiatives) unconstitutional. See Barnett supra note 26, at 240. Barnett doesn’t, however, quote Madison’s 1826 letter to Lafayette justifying his about-face on the bank. He thus doesn’t address the consistent position Madison took throughout his career in favor of acquiescence to public readings of the text—even public readings at odds with his preferred private readings of it. These public readings are established through the “discussions and adjudications” to which Madison referred in The Federalist 37; they were established during the life of the early republic by the repeated acts of legislation to which Madison yielded in signing the bank legislation in 1816. Barnett’s argument thus champions as constitutional law the very view that Madison repudiated in signing the bank bill.
- 36.
For Madison’s comments on what he called the “unalterable” rule of biannual House elections, see The Federalist 53, supra note 6, at 331.
- 37.
Katz v. United States, 389 U.S. 347 (1967), analyzed infra in Chapter 11.
- 38.
Griswold v. United States, 381 U.S. 479 (1965), analyzed infra in Chapter 10.
- 39.
2 Records of the Federal Convention of 1787 615–6 (Max Farrand, ed., 1937).
- 40.
The Convention participants’ strategic decision not to include a power to grant charters of incorporation is discussed in Bray Hammond, Banks and Politics in America: From the Revolution to the Civil War 104–5 (1957).
- 41.
- 42.
Madison remarked, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.” “In that sense alone it is the legitimate Constitution.…If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject” (Madison to Richard Henry Lee, June 25, 1824 in 3 Letters, supra note 35 at 442–3).
- 43.
Vasan Kasavan and Michael Stokes Paulsen propose this original public meaning version of originalism. Its aim is to identify “the meaning the language would have had (both its words and its grammar) to an average, informed speaker and reader of that language at the time of its enactment into law” (“Is West Virginia Constitutional?” 90 California Law Review 291, 398 (2002)).
- 44.
The term originalism has undergone many conceptual mutations over the last three decades. For a survey of its career as a category in constitutional law, see Originalism: A Quarter Century of Debate (Steven Calabresi, ed., 2007). The comments at notes 41–42 supra and accompanying text cover a bare-bones version of originalism. Many people who use this category insist on more than this bare-bones version, as Justice Scalia does. For an example of his public-understanding version of originalism, see note 47 infra and accompanying text.
- 45.
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 145 (1997).
- 46.
For discussion of this point, see supra note 14 and accompanying text.
- 47.
Lawrence Solum remarks, “The new originalism recognizes what we might call the fact of constitutional underdeterminacy: many of the most important questions of constitutional law are underdetermined by the linguistic meaning of the constitutional text.” “An outcome is underdetermined if the meaning is inconsistent with some outcomes but would be consistent with two or more resolutions of the case” (Lawrence Solum, “We Are All Originalists Now,” in Robert Bennett and Lawrence Solum, eds., Constitutional Originalism: A Debate 22 (2011)).
Justice Scalia’s approach to textual vagueness relies on the meaning/application distinction. In commenting on the text’s open-ended provisions, for instance, he remarks: “Statutes often—and constitutions always—employ general terms such as due process, equal protection, cruel and unusual punishments. What these generalities meant as applied to many phenomena that existed at the time of their adoption was well understood and accepted” (Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts 84 (2012) (emphasis in original)). Although Scalia insists that interpreters apply “open-ended” provisions in ways that were “well understood and accepted” by the ratifiers, he recognizes that other applications might be semantically sound as well.
- 48.
For analysis of the significance of longstanding practice for interpretation of the text, see Michael McConnell, “Time, Institutions, and Interpretations,” 95 Boston University Law Review 1745, 1771–6 (2015), which examines the Court’s remarks on this issue in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
- 49.
Each of the cases mentioned in this chapter’s table relies on an Article V bypass.
- 50.
Ackerman’s books have shown how it’s possible to contribute to constitutional theory through careful examination of the text’s history. See, in particular, 1 We the People: Foundations (1991) and 2 We the People: Transformations (1998). Although Ackerman doesn’t employ the term Article V bypass, his analysis of unconventional modes of modifying constitutional norms, in particular his examination of the New Deal transformation in 2 We the People 312–44, is understandable in terms of this bypass. The concepts I employ here—constitutional afterthoughts, interpretive supplementation, Article V bypass, and developmental supplementation—are compatible with Ackerman’s approach, although he doesn’t use them in his own work. However, my framework differs from Ackerman’s in that I follow Madison in emphasizing the possibility of an issue-specific consensus for establishing the legitimacy of an exercise in interpretive supplementation. Ackerman, in contrast, relies on a distinction between ordinary and constitutional politics to argue that legitimate change is justified only as part of relatively rare moments of national ferment that give rise to the latter kind of politics. Ackerman’s approach casts doubt on the legitimacy of most privacy rights. Because there has been no modern period of “constitutional politics” comparable to that of the New Deal, there appears to be no Ackerman-based justification for the privacy decisions of the last half-century (Ackerman, it should be noted, implausibly tries to justify Griswold v. Connecticut, 381 U.S. 479 (1965), in light of the New Deal consensus, but of course New Deal constitutional thought didn’t focus on issues of privacy protection. See 1 We the People 150–9). By contrast, in Chapter 9 infra, I argue that Griswold’s legitimacy can be established by reference to emergent patterns in national life only tangentially related to the New Deal’s transformation of political economy.
- 51.
Strauss comes close to using the term Article V bypass, though only to note a criticism that might be made of his version of living constitutionalism. “The claim that we have a living constitution,” he writes, “is just a claim that we can bypass Article V and that it [i.e., Strauss’s approach to constitutional interpretation] is illegitimate” (David Strauss, The Living Constitution 115 (2010)). In answering this, Strauss argues that “[s]ome form of living constitutionalism is inevitable, and necessary, to prevent the Constitution from becoming irrelevant or, worse, a straitjacket that damages the society by being so inflexible” (id.). The arguments advanced on behalf of privacy rights in later chapters of this book are consistent with this point. They rely, however, on a framework that accounts for the legitimacy of moves from the said to the unsaid. They offer a way to think about the methodological issues associated with interpretive supplementation, in other words, an issue Strauss doesn’t address. For the original source of the term, see Howard Lee McBain, The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law (1927).
- 52.
Or, to note a debt that Balkin himself acknowledges, a law review article introduced the term he employs in his book’s title. See Jack Balkin, Living Originalism 460 (2011), which states that Thomas Colby and Peter Smith introduced the term in their “Living Originalism,” 59 Duke Law Journal 239 (2009).
As for Balkin’s argument, I too emphasize the importance of original indefiniteness. See Living Originalism 4–7. Also, like Balkin, I defend the legitimacy of exercises in interpretive supplementation (though Balkin doesn’t use the term) that depart from ratifier understandings of the proper application of the text’s language. Given these similarities, it’s reasonable to classify both Balkin’s and my approach as examples of “the new originalism.” For more on this term, see supra note 46 and accompanying text.
But there are important differences as well. The most significant has to do with the justification for developmental ruptures with the past. Balkin doesn’t insist, as I do in the course of proposing a Madisonian framework of interpretive supplementation, on concrete evidence of a post-founding consensus to justify departures from original understandings. On my analysis, this requirement limits interpreters’ discretion when moving beyond the text. It restrains judicial power more significantly than does any limitation Balkin proposes.
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Heffernan, W.C. (2016). Chapter 1: Constitutional Afterthoughts. In: Privacy and the American Constitution. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-43135-2_2
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