Originalism and the Supremacy Clause

We've been talking about originalism a lot in my Philosophy of Law class this past week, and today we ended class with a discussion of "abstract" vs. "concrete" originalism. They're fairly familiar schools: the abstract originalists looks for what principles were originally intended/understood to be written in the Constitution, and then applies those principles as best we currently can, while the concrete originalist looks for what would've  been the originally intended/understood result in any specific case, and then reaches that same result. Arguably abstract originalism, the idea that one should judge the semantic meaning of words in the Constitution through an Originalist Dictionary and then use some other interpretive philosophy to understand the meaning of the vague, abstract clauses, is almost just trivially true. In any event it does not force us to anything resembling a Scalia jurisprudence, so we should care quite a lot whether abstract, trivial originalism or concrete, forceful originalism is more appropriate. One question might be, does the Constitution tell us anything about that debate?


Well, Article VI of the United States Constitution states, most notably, that

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Notice what is to be the supreme law of the land: "this Constitution" (as well as everything done under its auspices). And what does this Constitution say? Well, it says that Congress shall make no law abridging the freedom of speech, that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no cruel and unusual punishment shall be imposed. If this Constitution is the Supreme Law of the Land, then it would seem that something which is cruel and unusual punishment, in "Truth," must not be imposed. And if a law "truly" abridges the freedom of speech, Congress shall not make it. And if a law abridges the "true" privileges or immunities of citizens of the United States, then no state shall make or enforce it. All of this suggests the abstract originalism, which is to say no particularly noticeable originalism at all.

That's not an airtight argument, I concede. It's possible that "this Constitution" means, not the text of the written Constitution, but rather this Constitution as the founding generation intended/understood it to be applied in each specific instance. That, implicitly, every word in the Constitution and particularly the crucial lexical words was just used as shorthand for the litany of ways the founding generation would've applied that word in specific instances. That's a consistent world, but it's not a terribly plausible one. For one thing I think there's considerable evidence that the Framers adhered to the view that a Constitution shouldn't be written in those terms, but rather in broad generalities that can be applied to the world as each successive generation finds it. For another, I just think that view is a good and right one, and that, in the absence of a compelling reason to abandon it, we ought assume that's how our Constitution is written. In general I think that when two readings of the Constitution are of different moral quality, then barring a compelling reason to the contrary we should pick the better one.

Originalists like to claim to be textualists, but when they apply concrete originalism they are nothing of the sort: using the Supremacy Clause argument forces this discrepancy into the open. If I am convinced that X is cruel and unusual punishment, then under the text of this Constitution I must be convinced X is unconstitutional. That James Madison did not consider X to be cruel and unusual punishment is neither here nor there, for James Madison's personal opinions are not the Supreme Law of the Land. That the general American populace (or, in practice, the white, male, property-owning American populace) of 1791 did not believe X to be cruel and unusual punishment is equally irrelevant: the public sentiments of 1791 are not the Supreme Law of the Land.

The ultimate role the Supremacy Clause plays in all of this, I think, is to force the issue of Scalia-style "concrete originalism" onto this rather more unfavorable linguistic terrain. It is this Constitution, nothing more and nothing less, that is the supreme law of the land. In order for concrete originalism to prevail, then, it must be true that the commandments of that philosophy are actually contained in the document itself. Without noting the crucial role of the Supremacy Clause, we might be misled by the fancy rhetoric originalists love to use to confuse us. "The Constitution as was originally understood it would be applied is the only thing with democratic authority," they might say. "Perhaps," we can reply (though that's a doubtful point itself), "but under the Constitution that does not matter: this Constitution is the Supreme Law of the Land."



Parenthetically, I should note that the Supremacy Clause poses no corresponding problem to a Dworkinian, or any other good-faith practitioner of judicial-activist-y living constitutionalism. Dworkin believes that a judge should apply moral principles in reaching a decision in hard cases, but the moral principles he or she should apply are not just any such principles. They are those principles contained and implicit within the positive statutory law at issue, in this context the Constitution. There's no reason why "this Constitution is the Supreme Law of the Land" cannot include the idea that the principles contained and implicit within "this Constitution" are also supreme law. Similarly, the way my grandfather put it was that the positive law of the Constitution invited natural moral law in the door to certain extents in certain places, like "due process of law" and "cruel and unusual punishment." If moral considerations enter constitutional law only to that extent that the Constitution itself invites them in the door, then it seems natural to say that those moral considerations are part of the Constitution, and thus the supreme law of the land.