Common law, common ground, and Jefferson's principle. (2025)

I. INTRODUCTION

Why do we care about the Framers of the Constitution? After all,they lived long ago, in a world that was different in countless waysfrom ours. Why does it matter what their views were, for any reasonsother than purely historical ones? And if we don't care about theFramers, why do we care about their handiwork, the Constitution itself?.It was the product of the Framers' times and the Framers'sensibilities. What possible reason can we have for allowing itsprovisions to rule us today? Even if the Founding generation wasexceptionally visionary and enlightened, we would not allow ourselves tobe ruled by even the most extraordinary group of people if they lived inanother country halfway across the world today. Why do we allowourselves to be ruled by the decisions of people who lived in a timethat was, in every relevant respect, much further away than that?

These might seem to be the most academic of questions. No oneseriously disputes that the Constitution is supreme law, and nearlyeveryone acknowledges that the views of the Framers matter to somedegree. Academic or not, though, these questions are important becausethroughout constitutional law, the role of text and originalunderstandings remains uncertain. Until we have tried to answer the mostfundamental skeptical question--why do we care at all about theFramers?--we will not know what role the text and the originalunderstandings should play.

The role of the text and the original understandings may be as muchin dispute today as it has ever been. In some areas--federalism, theright to keep and bear arms under the Second Amendment, the EighthAmendment's protection against cruel and unusual punishment, theReligion Clauses of the First Amendment--there is a concerted effortunderway, by advocates and sometimes by judges and Justices, to makeconstitutional law conform more closely to what are said to be thedictates of the text and the original understandings, (1) To what extentshould the original understandings govern the interpretation of thoseprovisions, or of the Free Speech Clause of the First Amendment, or theFourth Amendment, or the Self-Incrimination or Just Compensation Clausesof the Fifth Amendment, or the Due Process and Equal Protection Clausesof the Fourteenth Amendment, or the structural provisions of theoriginal Constitution? Critics have powerfully attacked the notion thatconstitutional interpretation can rely exclusively on the text and theoriginal understandings; (2) but as long as the text and originalunderstandings play some role in constitutional interpretation--asessentially everyone agrees they must--these issues about the role oftext and original understandings will remain with us, and we will haveto address the fundamental question of why the Framers matter at all.

There is no agreed-upon answer to that question. It has been askedbefore: It was Thomas Jefferson's question at the time of theFounding. "[T]he earth belongs to the living, and not to thedead," he wrote to James Madison from Paris in 1789; (3) so how canany constitution purport to bind later generations? Jefferson was notalone in raising the question at that time--he was not even the mostextreme skeptic--but his formulation was the most memorable.

The problem is that Jeffersonian skepticism is very difficult torebut, on one level, but wholly unpersuasive on another. It is, in fact,hard for anyone who believes in self-government to come up with anexplanation for why long-ago generations should have such a decidedeffect on our law today, whether they are the generation of theFounding, or the Civil War, or any other. But at the same time,Jeffersonian skepticism about the Constitution seems out of touch withthe reality of our political and legal culture, or even our culture moregenerally. Many people revere the Constitution. Many Americans considerthemselves connected, in some important way, to earlier generations.American law today seems like a chapter in a multigenerational project,and its multigenerational character is part of the reason it is valued.To many people, allegiance to the Constitution and a certain kind ofrespect for the Founding, and for crucial episodes in our history, arecentral to what it means to be an American. All of those attitudes aredeeply incompatible with Jefferson's kind of skepticism, and aslong as those attitudes remain widespread, Jefferson's skepticismwill always seem to many to be a little like a debating point--cleverand hard to answer, but somehow deeply wrong.

In this Essay, I want to address these issues in a way thatresponds to Jefferson--that gives a reason for paying attention to theConstitution that ought to satisfy even a Jeffersonian skeptic--but thatalso accommodates more deeply held views about the Constitution andAmerican traditions, rather than dismissing those views as mysticism orancestor worship in the way that Jefferson's skepticism seems todismiss them. The first part of the answer to Jefferson is confessionand avoidance: To a large extent, American constitutional law hasdeveloped in a way that is independent of the views of the Foundinggeneration. Much of American constitutional law consists of precedentsthat have evolved in a common-law-like way, with a life and a logic oftheir own. But it would be a mistake to say that American constitutionallaw consists entirely of precedents and is independent of the text andthe Framers. The text, unquestionably, and the original understandings,to a lesser degree, continue to play a significant role. We cannotescape Jefferson's question by saying that we have left the Framersbehind.

The central answer to Jefferson is that the text of theConstitution provides a common ground among people, and in that way itfacilitates the resolution of disputes that might otherwise beintractable. Sometimes, in the familiar formulation, it is moreimportant that things be settled than that they be settled right, andthe provisions of the Constitution settle things. The Constitution tellsus how long a President's term will be, how many senators eachstate will have, whether there are to be jury trials in criminal cases,and many other things. Even if the rules the Constitution prescribes arenot the best possible rules, they serve the very valuable function ofproviding an answer so that we do not have to keep reopening thoseissues all the time.

These justifications, as I will explain, ought to satisfy even themost iconoclastic Jeffersonian skeptic. Equally important, they fit withour current practices of constitutional interpretation. The common lawand common ground justifications make sense of the way we interpret theConstitution, including aspects of our practice of constitutionalinterpretation that otherwise seem quite problematic. The common law andcommon ground justifications should therefore be acceptable to anyonewho finds our current constitutional order generally acceptable, even ifthat person wants to reject, a la Jefferson, anything that mightremotely look like ancestor worship.

But at the same time, the common law and common groundjustifications do not require anyone to reject more reverential views ofthe Constitution and the Framers. People who believe, as some do, thatthe Framers were divinely inspired can accept the common law and commonground justifications; in fact, they have an especially strong reasonfor accepting those justifications. People who, less dramatically, seethemselves as part of an ongoing American tradition that embracesearlier generations also have good reasons to accept thosejustifications. But people who want to debunk all of that--or whoidentify with other traditions, religious or ethnic traditions perhaps,that have nothing to do with the Framers--can also accept the common lawand common ground justifications. The key idea here is Rawls'sfamous notion of the overlapping consensus. People who adhere to widelyand fundamentally different belief systems, such as different religions,can nonetheless all embrace certain common principles, as can people whoreject any religious belief system. That is the kind of justificationthat adherence to the Constitution and the original understandingsrequires, and the common law and common ground justifications can, Ibelieve, provide it.

In Part II, I will describe Jefferson's argument, the answersthat have customarily been given to it, why those answers are not fullyadequate, and how the common law and common ground justifications mightprovide an answer. In Part III, I will elaborate on the suggestion thatpart of the answer to Jefferson is that constitutional law has developedin a common-law-like way that is, to a significant extent, independentof the text and the Framers' understandings. Then, in Part IV, Iwill describe the "common ground" justification for adheringto the text and original understandings on those limited but importantoccasions when we do so. In Part V, I will try to show how this"common ground" justification makes sense out of currentpractices that would otherwise be problematic, and I will discuss otherimplications of that justification for constitutional interpretation.

II. JEFFERSON'S PRINCIPLE

A. "The earth belongs ... to the living."

"The earth belongs in usufruct to the living," (4)Jefferson wrote to Madison in 1789. "[T]he question Whether onegeneration of men has a right to bind another, seems never to have beenstarted either on this or our side of the water," even though"it is a question of such consequences as ... [to] place ... amongthe fundamental principles of every government." (5)Jefferson's answer to the question was no: "We seem not tohave perceived that, by the law of nature, one generation is to anotheras one independent nation to another." (6) Therefore, Jeffersonsaid, "[e]very constitution ... and every law" should"naturally expire[] at the end of 19 years." (7) (Jeffersonelaborately calculated, on the basis of life expectancies at the time,that a majority of people twenty-one and older would die within nineteenyears and concluded that was the best measure of a generation'slife span.) (8) If any law "be enforced longer, it is an act offorce, and not of right." (9)

Jefferson's argument, in some form, goes back at least toHume's essay Of the Original Contract. (10) It was a repeatedrefrain of Thomas Paine's. (11) Others besides Jefferson madesimilar arguments at the time of the drafting and ratification of theConstitution; Noah Webster, in particular, ridiculed Jefferson for notholding the principle more consistently. (12)

Jefferson's principle remains, today, the central challenge towritten constitutionalism--indeed, perhaps to more than that, since muchordinary legislation is also the product of earlier generations. And tothis day, it is not clear how to answer Jefferson's argument."This principle that the earth belongs to the living, and not tothe dead, is of very extensive application and consequences, in everycountry ...," Jefferson said. (13) In our own legal culture, thequestion is, among other things, why the generations who drafted theConstitution of 1787, or the Bill of Rights, or the post-Civil Waramendments to the Constitution have a right to rule us today.Specifically, why do we care about their intentions, which are generallythought to have some importance to current constitutional controversies?And, more pressing, why do we even care about the documents theyadopted, which everyone today would acknowledge to be in some senseauthoritative?

B. Commands and Intergenerational Obligations

In the American constitutional tradition, most of the answers thathave been offered to these questions take one of two general forms. Onekind of answer might be called Austinian, after John Austin's viewthat law is a command issued by a sovereign. (14) This answer toJefferson's question asserts that the decisions of the earliergenerations bind us in essentially the way that an order from abureaucratic superior binds a subordinate. (15) Often this view seems tobe not even asserted but assumed; people try to uncover what theFounding generation, or subsequent generations, thought about an issuewithout explaining why that would be significant today.

A second, more complex kind of answer relies not so much on asimple model of superior and subordinate, but rather on a conception ofintergenerational identity. We owe "fidelity" to the earliergenerations because we live in the same political community, extendedover time, as they. Just as part of being an American is acknowledgingobligations of mutuality with others who live today, so part of being anAmerican is to maintain continuity with those earlier generations. Oneway we do that is to adhere, at least to some degree, to their decisionson questions of constitutional law. Many theories take this second form;some meld aspects of these two forms. (16)

The first kind of answer, with its simple Austinian model--theFounders were the sovereign, and their commands bind us--seems at firstglance just to refuse to engage Jefferson's argument. But thisapproach cannot be disregarded entirely. As Jefferson acknowledged, atleast for a time a majority is entitled to rule. Any account ofconstitutional interpretation has to explain the undoubted binding forceof a contemporaneous majoritarian decision.

The second kind of answer, asserting a conception ofintergenerational identity, is deeply woven into the way many peoplethink about the Constitution. It speaks to something important. There isundoubtedly a human need, widely if not universally felt, to understandoneself as part of an ongoing tradition and to have a connection toearlier generations. (17) This is often the way in which peopleunderstand themselves to be part of an ethnic group or a religioustradition. Many accounts that are implicitly offered to answerJefferson's objection provide conceptions of what it is to be anAmerican, conceptions that include fidelity to earlier generations'decisions about the Constitution. (18)

But the analogies to religious and ethnic identity ought to give uspause about using this kind of explanation for the binding character ofthe Constitution. People alive today in the United States, or any otherreasonably heterogeneous community, will define the tradition to whichthey belong in different ways. Relatively few people alive today areeven descended from the people who participated in the greatconstitutional decisions of the past. This is the result of bothimmigration and the enfranchisement of a much larger percentage of thepopulation, changes that make Jefferson's question all the moredifficult to answer.

Nearly all of us are being asked to accept decisions made not byour own ancestors, which would be troubling enough, but by someoneelse's ancestors. Individuals might choose to do so; they mightchoose to consider themselves part of an American tradition thatincludes the Framers or the post-Civil War generation. But it isdifficult to see why people who do not feel themselves part of thattradition--who identify primarily with a different ethnic, religious, orcultural tradition, or with no tradition at all-should be told that theyhave to identify with this particular American tradition as well. And ifwe are unwilling to tell them that--as we should be--then this secondkind of justification for adhering to the Constitution will not work.

To put the point another way, the justification for using a writtenConstitution, and following original intentions, should not besectarian. It should not depend on a particular conception of what it isto be an American. It should be something that can appeal to anyreasonable member of our society today, even to people who reject theidea of belonging to any American cultural or quasi-ethnic tradition,and even to people who--following the logic of Jefferson'sskepticism--adhere to no tradition at all.

C. Common Law, Common Ground, and the Idea o fan OverlappingConsensus

The way to try to develop such a conception, I believe, is torecognize that the decisions of earlier generations can be binding todayeven in the absence of any kind of obligation of obedience--either thestraightforward obligation of a subordinate to a superior, or the morecomplex idea of "fidelity" to an earlier generation. Jeffersonmay be right that we do not owe anything, in any sense, to earliergenerations. But his skeptical conclusion does not follow. There are atleast two other possible reasons why we might care about what earliergenerations did.

First, a decision made by an earlier generation might serve as aprecedent. In a common law system, precedents from earlier eras bind toa degree. Nevertheless, the problem Jefferson identified is greatlyameliorated in a common law system, or so I shall argue shortly. And thejustification for following precedent need not rely on any notion ofintergenerational identity or intergenerational obligation. There aresensible reasons why any rational person would be reluctant to departfrom well-established practices that were endorsed, after dueconsideration, by people in the past when they were confronted withsimilar issues.

Second, an earlier generation's decision--especially when itis embodied in an authoritative text--can serve as readily acceptedcommon ground among people who otherwise disagree. (19) A legalprovision can settle things, and sometimes--when it is in fact moreimportant that things be settled than that they be settled right--thefact of settlement alone is enough to make the provision binding. Thebinding force of the provision rests on its functional ability to settledisputes, and not at all on whether the entity that enacted theprovision is entitled to obedience or "fidelity."

Accepting the common law and common ground answers toJefferson's argument does not require one to reject the other kindsof answers that have been offered. In particular, the common law andcommon ground arguments are not inconsistent with, or even in tensionwith, the notion of intergenerational identity--the idea that part ofbeing an American is honoring the decisions of earlier generations ofAmericans. One can hold a particular view of the importance of theConstitution in defining American identity and also accept the commonlaw and common ground justifications.

In fact, an intergenerational conception of the political communityprovides an additional reason for accepting those justifications. Aconception of English identity was an important part of the early commonlawyers' ideology. (20) To the extent one believes one has anobligation of fidelity to earlier generations of Americans, one'swillingness to treat their decisions as precedents, and their enactmentsas common ground--as one of the things that all Americans have incommon--will be strengthened. Belief in a quasi-ethnic American identityis not an adequate basis for answering Jefferson's question; but itis also important not to answer that question in a way that will requirepeople to repudiate such beliefs, which are widely held. The common lawand common ground justifications do not require people to repudiatethose beliefs.

But the common law and common ground justifications do not dependon any particular conception of American identity, any more than one hasto accept the common lawyers' elaborate ideas about "theancient constitution" of England in order to accept the common lawof property or contract. The common law and common ground justificationsfor constitutional obligation rely on arguments that should appeal toall reasonable members of the political community. This is Rawls'sidea of the "overlapping consensus": (21) People who havedifferent ideas about intergenerational obligation, or Americanidentity--or who reject such notions altogether--should all be able tosay that the common ground and common law justifications make sense.

The common law and common ground justifications explain why weshould adhere--although only in certain ways--to the text of theConstitution and the original understandings and intentions,appropriately defined. These justifications, I think, answerJefferson's question in a way that does not require people toaccept a controversial conception of American quasi-ethnic identity. Butthese justifications also do not require people to be skeptical aboutsuch conceptions. People can go in different directions when they define"what it is to be an American," while all accepting the commonlaw and common ground justifications for adhering to the Constitution.

On a more concrete level, these justifications support firmlyrooted aspects of the legal culture that are otherwise difficult toexplain. For example, it is a persistent feature of Americanconstitutional law that while arguments based on a careful parsing ofthe text of the Constitution sometimes play a large role in resolvingrelatively unimportant issues, the text plays essentially no operativerole in deciding the most controversial constitutional questions (aboutdiscrimination, fundamental rights, and freedom of expression, forexample), which are resolved on the basis of principles derivedprimarily from the cases. The common ground answer to Jefferson'squestion accounts for--and justifies--that apparently puzzling featureof a system that purports to be based on a written Constitution.

Similarly, the common ground justification explains a kind ofverbal fetishism that seems to be a fixed feature of our constitutionalculture: an attachment to the specific language of the Constitution,even if the language is being used for purposes that are unquestionablyat variance with those of the people who drafted the language. Thecommon law and common ground justifications also explain why we seem toaccept the widespread use, by judges and lawyers, of "law-officehistory": the selective use of historical sources to support aconclusion reached partly on other grounds, as opposed to a genuineeffort to understand, in context, an earlier time. And thosejustifications explain an apparently odd disjuncture in popularattitudes to the justifications for amending the Constitution: TheConstitution is not to be "cluttered up" with detail, but manyimportant and widely supported amendments are highly detailed. Finally,the common law and common ground justifications support a version ofJefferson's time-bound majoritarianism: the idea that amajority's will can legitimately govern for a while, but mustrecede as time passes.

D. Why Not Sunset?

Before proceeding to those issues, though, it is worth consideringthe solution that Jefferson himself proposed--that there should be anautomatic sunset provision applied to all laws. In fact, this proposalis no solution at all. But it does reveal two important things:Jefferson's problem can be solved only by introducing anintertemporal element into interpretation, and that intertemporalelement must be able to operate gradually, not precipitously.

The immediate difficulty with Jefferson's sunset solution isthat it is hard to see how one can specify a nonarbitrary term of yearsfor a provision to remain in effect. The best Jefferson could do was aconvoluted calculation that the magic period is nineteen years. But thisdifficulty is actually derivative of a deeper problem: What should thelaw revert to after a provision has expired? The law that existed beforethe provision was adopted is the product of an even earlier generation;there is, if anything, even less reason to impose that earlier law onthe current generation. Ideally, after a provision expires, the lawshould become something that the current generation itself endorses. Buthow do we determine what that is?

Jefferson himself explained why it is so difficult to keep the lawup to date, in the course of rejecting the argument that "thesucceeding generation[']s ... power [to] repeal" a provision"leaves them as free as if the constitution or law had beenexpressly limited to 19 years only." (22) The power to repeal a lawdoes not protect a later generation from the impositions of an earliergeneration:

 [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 proposition. 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. (23)

These familiar problems of legislative inertia and public choice donot just prevent laws from being repealed when they no longer reflectthe majority's views; they can also prevent a majority fromreplacing an expired law with something reflecting their views. (24)Perhaps even after much more than Jefferson's nineteen years, amajority of the society--composed of some survivors of the oldergeneration that voted on the law and some members of the new generationthat did not--wants the old law to continue in effect. Or perhaps theview of the new majority is that the law should be modified, but notwiped from the books. The Civil Rights Act of 1964, for example, must beviewed today as the product of an earlier generation, and not just in achronological sense. But simply "sunsetting" theAct--reverting to the pre-1964 status quo--would surely be less inkeeping with the current generation's views than the 1964 Act isitself. Given the problems Jefferson identified with relying on repeals,we could not view the failure to reenact the old law as a reliableindication that a current majority rejects it. And, for similar reasons,there is no obvious way to ascertain how the current generation wouldlike to modify the Act.

The failure of the sunset solution, however, has two importantlessons. One is that the core of Jefferson's principle is notaffected: Even if a mandatory sunset is not the solution, the problem ofone generation ruling another remains. The second is that theinterpretation of laws should not change abruptly. Not only dogenerations not change abruptly, but the work of a previous generationdoes not leave the scene when it does: changes that generation hasbrought about in the culture will remain. "[H]istoric continuitywith the past is not a duty, it is only a necessity." (25) Both thecommon law and the common ground arguments try to meet theserequirements. They preserve the work of the past, but only to the extentthat the past either must, unavoidably, be preserved, or should bepreserved, for good reasons. But at the same time, these approachespermit gradual adaptation.

III. CONFESSION AND AVOIDANCE: THE COMMON LAW ANSWER TO JEFFERSON

The text and the original understandings unquestionably play asignificant role in constitutional law, but it is far from a dominantrole. Part of the answer to Jefferson's question about why weshould adhere to the Framers' decisions is: Often, we don't.To a large extent our constitutional law has solved Jefferson'sproblem by becoming a common law system in which cases are decided onthe basis of precedents, not the text. (26) The dispute in controvertedcases is over the best reading of the precedents, and--consistent withthe approach common law courts have historically taken--over what isfairer or more sensible policy. The common law approach is central tomany of the most important areas of constitutional law: freedom ofexpression, race and gender discrimination, property rights, proceduraldue process, federalism, capital punishment, police interrogation, thelimits of congressional power, implied fundamental rights, the"case or controversy" requirement in the federal courts, statepower over interstate commerce, and state sovereign immunity.

The constitutional law governing freedom of expression is anillustration. Today, this law consists of an elaborate doctrinalstructure. One asks whether a restriction on speech is content-based,content-neutral, or incidental; whether the speech that is restricted ishigh-value or low-value; whether the measure in question is arestriction or a subsidy. Depending on the answers, there are furthertests to be applied. (If the speech is incitement, a version of the"clear and present danger" test; if the speech is defamatory,a version of the standard established by New York Times Co. v. Sullivan;(27) and so on.) This body of doctrine is based in precedent anddeveloped over time. The spare text of the First Amendment of coursecould not, by itself, generate such an elaborate set of rules, and whileit is common to impute to the Framers views about freedom of expressionthat agree with modern conceptions, actual investigation of theFramers' views has played essentially no role in the development ofthe law. (28)

The same pattern holds in all the other areas I mentioned. A lawyerwho needs to learn constitutional law in an area generally learns thecases or, in some areas, the nonjudicial precedents. In one of the mostactive areas in recent constitutional law--the principles governing therelationship between the states and the federal government--even some ofthe Supreme Court's most relentless advocates of relying on thetext of the Constitution have found themselves forced to concede thattheir conclusions are based on something other than the text. (29)

Of course, the use of precedent itself might be challenged by aJeffersonian skeptic. The common law of England was a favorite target ofTom Paine and others who made arguments like Jefferson's. (30) Butthe use of precedent is much more easily defended against such askeptical attack than is the use of the original understandings, or eventhe use of the text. The practice of following precedent can bejustified in fully functional terms, without relying on a controversialconception of national identity or intergenerational obligation.

To some degree, the use of precedent is simply unavoidable. Neitherlegal doctrine nor anything else can be created anew every day. That isa principal lesson of the failure of Jefferson's sunset solution.The work of the previous generation will, to some degree at least,inevitably be our starting point, in law and elsewhere. To that extent,we have no choice but to follow precedent. A system of constitutionallaw that did not build on what has been done before may be literallyinconceivable and is certainly entirely impracticable.

In addition, there are well-known justifications for the use ofprecedent that do not require the kind of ancestor worship thatJefferson attacked and that do not appeal to sectarian conceptions ofAmerican traditions. (31) The most familiar justification is often (ifperhaps misleadingly) called Burkean. (32) In modern terms, the basis ofthis justification is that human rationality is bounded. The problemsconfronted by the legal system are complex and multifaceted; anindividual's capacity to solve them is limited. It therefore makessense to take seriously what has been done before, both because it mayreflect an accumulation of wisdom that is not available to any oneindividual and because it provides a storehouse of trial-and-errorinformation on how the problems might be solved. (33)

These justifications for a common law approach--which relies onprecedent while gradually updating it to take account of new conditionsand to embody new insights--should be enough to satisfy a Jeffersonianskeptic. The common law approach does not treat past decisions asbinding commands; it adheres to those decisions only because, and to theextent that, it makes good functional sense to do so. Jefferson himselfseems to have recognized that such an evolutionary system would notpresent the problems he identified. In one of his famous later letters,in which he again endorsed periodic revisions of the Constitution, hisremarks took on a common-law-like tone, endorsing a practice of"wisely yielding to the gradual change of circumstances" and"favoring progressive accommodation to progressiveimprovement." (34) To the very considerable extent that ourconstitutional law is a common law system, based on precedent ratherthan text, Jefferson's challenge can be met with relative ease.

IV. COMMON GROUND AND CONVENTIONALISM

Our constitutional system is not entirely a common law system,however. This is a fixed point of our legal culture. In particular, noone says that the text of the Constitution does not matter or is onlyadvisory. You cannot make an argument for any constitutional principlewithout purporting to show, at some point, that the principle isconsistent with the text of the Constitution. And no provision of theConstitution--even an indefensible one (like the requirement that aPresident be a natural born citizen)--can be overruled in the way aprecedent can.

On many important issues, the text is followed exactly, even whensubstantial arguments can be made that the judgments reflected in thetext have been superseded. No one seriously suggests that the age limitsspecified in the Constitution for Presidents and members of Congressshould be interpreted to refer to other than chronological (earth) yearsbecause life expectancies now are longer, that a President's termshould be more than four years because a more complicated world requiresgreater continuity in office, or that states should have differentnumbers of senators because they are no longer the distinct sovereignentities they once were. This seems to reintroduce Jefferson'spuzzle. Why do we universally accept that the words written by earliergenerations are binding?

The answer is that we accept those words, not because weacknowledge the authority of earlier generations over us, but becausethey serve as common ground in the way I described earlier. Thismatters, potentially greatly, because it affects how we interpret thesewords in controversial cases. For Jefferson's reason, the objectiveof interpretation is not--and should not be--"fidelity," inany meaningful sense, to the people who drafted or adopted theConstitution. Their judgments, including the judgments reflected in thewords they adopted, are entitled to respectful consideration asprecedents, but no more; and we have overridden their judgments on anumber of important issues. Rather, the objective, in interpreting thetext, is to make sure that the text can continue to serve as commonground. This can be called the conventionalist justification for relyingon the text. The text serves as a convention, a focal point ofagreement. (35)

In this Part, I will explain the conventionalist, or common ground,justification for following the text and the original understandings. InSection IV.A, I will explain how conventionalism can justify adhering tothe text of the Constitution, notwithstanding Jefferson'sobjection. In Section IV.B, I will discuss why our Constitution, inparticular, is well-suited to serve as common ground in this way, andwhy originalism, at least in certain rigid forms, is deeply inconsistentwith the genius of the Constitution. Section IV.C extends theconventionalist justification beyond the text itself to theFramers' intentions and precedent. Finally, in Section IV.D, I willtry to show that the common ground account is not sectarian: It does notdepend on a contested view about what it means to adhere to Americantraditions, but it also does not require that people accept Jeffersonianskepticism about the value of the past.

A. Conventionalism and the Text

Conventionalism, as I said earlier, is a generalization of thenotion that it is more important that some things be settled than thatthey be settled right. (36) Left to their own devices, people disagreeabout various questions, large and small, related to how the governmentshould be organized and operated. In some cases, such as thePresident's term of office or the number of senators, theConstitution provides answers. In many other cases, the text limits theset of acceptable answers. This is true, for example, of the features ofthe criminal justice system: Although the Bill of Rights and otherprovisions of the Constitution do not prescribe exactly what thecriminal justice system will look like, certain essential features(juries, witnesses called by the parties, representation by counsel,trials that are not held in secret or at a place remote from the crime)must be present under any straightforward reading of the text. Even whenthe constitutional provisions are quite open-ended, as in the case ofthe Religion Clauses for example, having the text of the clauses as theshared starting point at least narrows the range of disagreement.

People who disagree about a constitutional question will often findthat although few or none of them thinks the answer provided by the textof the Constitution is optimal--either the specific answer, if one isprovided, or the limit on the set of acceptable answers--all of them canlive with the limits that the text imposes. Moreover, not accepting thelimits imposed by the text has costs--in time and energy spent onfurther disputation, in social division, and in the risk of a decisionthat (from the point of view of any given actor) will be even worse thanthe decision that will result from adhering to the limits imposed by thetext. In these circumstances, sometimes the best course overall may beto follow the admittedly less-than-perfect judgment reflected in thetext of the Constitution.

The text, in this way, provides what game theorists call a focalpoint. In a game that has elements of both conflict and coordination,there will be multiple equilibria, and the solution will often depend onsocial conventions or other psychological facts. The most commonexamples are deciding whether traffic should keep to the left or theright, or who should call back if a telephone call is disconnected. Insuch circumstances, the solution will often be the action that, simplyby virtue of an accident of culture or history, seems natural or hasbecome habitual.

Some political disputes have roughly the structure of the so-called"battle of the sexes" game: Each side would prefer its ownfirst choice, but each is willing to give up its own first choice ifnecessary to avoid conflict. (37) Although you and I may have differentideas about the optimal length of the President's term of office,we agree that a quick resolution is better than the uncertainty orprolonged conflict that might result if we insisted on our respectivefirst choices. Here, unlike the situation in which people are decidingwhether to keep to the right, there is some conflict of interest betweenthe parties, as well as some common interest. But in this situation too,the outcome of the game can be determined by social conventions that maymake one solution stand out as obvious or appropriate. (38)

The text of the Constitution is a particularly good focal point ofthis kind. Because of the way it is regarded in our culture, it is anatural place to look for a solution on which we can all agree, whenagreement is especially valuable. But the Constitution's culturalsalience, and its usefulness in resolving disputes--not its optimalityor the authority of the Framers--are the reasons for following it. (39)

Another analogy might be between our practice of adhering to oureighteenth- and nineteenth-century Constitution and the reception ofRoman law in Europe in the late Middle Ages. Roman law, when it wasrediscovered in Western Europe, was an accessible, comprehensive, andbasically acceptable set of rules. Various peoples' purportedancestral ties to Rome undoubtedly helped Roman law gainacceptance--another parallel to our Constitution--but the actualpromulgators of Roman law obviously had no claim to obedience. It isalso not likely that the provisions of Roman law were the best thatcould be devised as an original matter. It was simply that Roman law wasa coherent body of law that was at hand, and its adoption avoided thecostly process of reinvention. (40)

This is what makes the text of the Constitution binding--thepractical judgment that following this text, despite its drawbacks, ison balance a good thing to do because it resolves issues that have to beresolved one way or the other. Every time the text is ignored orobviously defied, its ability to serve as common ground, as a focalpoint, is weakened. On the other hand, every time we plausiblydemonstrate that a conclusion we have reached can be reconciled with thelanguage of the Constitution, we make it easier for theConstitution--either the same provision or some other provision--toserve the function of narrowing or eliminating disagreement. We willhave to put up with a malapportioned Senate and with disqualifyingnaturalized citizens from the presidency, but we will gain by narrowingor eliminating disagreement on many other issues.

This common ground, or conventionalist, justification for treatingthe text as binding is based both on the interest of society as a wholeand on the requirements of fairness. It will not always be in theself-interest

of every individual to follow the text. Any one individual might, intheory, be better off if he can follow his own judgments where theydiverge from the text but can insist that others adhere to the textwhere he agrees with it. But often everyone will be better off ifeveryone follows the text than if people generally insist on their ownjudgments. In these circumstances, the argument for following the textrests on a basic principle of fairness: It is unfair to take advantageof others' cooperation in a mutually beneficial scheme if one doesnot cooperate oneself. The argument may also be consequentialist: It maybe that if one person cheats, by failing to follow the text, others aremore likely to cheat too, and soon the ability of the text to coordinatebehavior will be lost, to everyone's detriment.

B. Conventionalism, Originalism, and the Genius of the Framers

What makes the Constitution of the United States a good focalpoint, so that adhering to it might be justified on conventionalistgrounds? After all, this conventionalist justification for following thetext will not work for just any text. It will make sense only if certainthings are true of the text. For example, if the text were entirelyopen-ended--if it did not prescribe anything in any case--it could notserve as common ground in the conventionalist sense. More important, ifthe text forced truly unacceptable outcomes on us, the drawbacks ofusing it as a focal point might outweigh the gains. It might still bepossible for certain provisions to be focal even if others weredisregarded; it is difficult to figure out, as a matter of socialpsychology, just what makes something an effective focal point. Butsurely we are much more likely to get the conventionalist benefits of,say, the provision limiting the President's term of office, if wecan say that the whole Constitution is common ground than we are if weroutinely disregard parts of the Constitution and try to insist thatonly certain clauses are binding.

Our Constitution is, in certain important ways, very well designedto serve as common ground. It is sometimes objected that theconventionalist justification is too cold-blooded: It seems to reducethe Constitution from being a quasi-sacred document, the product of theFramers' genius, to being a desiccated focal point. If this weretrue, then the conventionalist justification might be another sectarianaccount, not something that can serve as part of an overlappingconsensus among different conceptions of American citizenship. But it isby no means an implication of conventionalism that the Constitution is"merely" a focal point. On the contrary, it takes a certainkind of genius to construct a document that uses language specificenough to resolve some potential controversies entirely and to narrowthe range of disagreement on others, but also uses language generalenough not to force on a society outcomes that are so unacceptable thatthey discredit the document.

The genius of the Constitution is that it is specific wherespecificity is valuable, general where generality is valuable--and thatit does not put us in unacceptable situations that we can'tplausibly interpret our way out of. There is reason to think the Framerswere self-conscious about this, for example in their elliptical (albeitdoomed) treatment of slavery in the original document. Edmund Randolph gave essentially this advice to the Committee on Detail at theConstitutional Convention: "[T]he draught of a fundamentalconstitution," he said, should include "essential principlesonly; lest the operations of government should be clogged by renderingthose provisions permanent and unalterable, which ought to beaccommodated to times and events." (41)

Our political culture today seems to have internalized therequirements of conventionalism: that there is a time for specificity inthe Constitution, but there is also a time for generality that willallow interpretive flexibility in the future. People seem to recognize,for example, that when constitutional amendments address large-scaleproblems, they should be written in general terms; it is commonly saidthat the Constitution should not be "cluttered up" withamendments that are too specific or that respond too narrowly toparticular current controversies. (42) But at the same time, we arewilling to add highly specific amendments to the Constitution, such asthe Twenty-Fifth Amendment, providing for presidential disability, orthe Twentieth Amendment, specifying the dates when the President will beinaugurated and Congress will convene.

One important implication of conventionalism is that this choicebetween generality and specificity is a crucial constitutional decision.That is why originalism is, despite its pretensions, inconsistent withthe true genius of the Constitution. At least this is so if originalismmeans that whenever the text of a constitutional provision is unclear,the understandings of those who adopted the provision will govern untilthe provision is formally amended. That approach takes provisions thatthe Framers left general and makes them specific. The drafters andratifiers of the First Amendment may well have thought that blasphemy could be prohibited; the drafters and ratifiers of the FourteenthAmendment thought that racial segregation and gender discrimination wereacceptable. Had the amendments said those things, in terms that couldnot be escaped by subsequent interpreters, our Constitution would workless well today.

But the text does not express those specific judgments. As aresult, instead of having to read the First or Fourteenth Amendments outof the Constitution, we are able to read our own content intothem--following a common law approach--and then use those provisions,interpreted in that way, to enhance the prestige of the Constitution asa whole. That, in turn, more thoroughly entrenches the specific, focalprovisions of the Constitution. The Constitution as a whole commandsallegiance more readily when the Equal Protection Clause is interpretedto outlaw state-enforced segregation rather than in the way theratifiers of that Clause understood it. Making the general provisionsspecific, as originalists would, undoes this ingenious project.

C. Conventionalism Beyond the Text

Conventionalism therefore provides a justification for apractice--paying attention to the words of the Constitution--thatJefferson's argument calls into question. But other things, besidesthe text, can serve as focal points, and the conventionalistjustification need not be limited to the text. Precedents can be focal;original understandings can be focal. The use of such focal points isoften almost instinctive, as one might expect; it is a characteristic ofa useful focal point that adherence to it seems natural. Whatever thefocal point, however, when adherence to a position rests onconventionalist grounds, the extent of adherence cannot outrun thejustification. If the justification for following the originalunderstanding on a particular point is the conventionalistjustification, then following the original understanding is justified,speaking roughly, only so long as the costs of unsettlement (includingthe "cost" of unfairness, if one is departing from a rulewhile taking advantage of others' compliance) are greater than thebenefits that might come from the departure. (43)

There is an important connection between the conventionalist andcommon law justifications for our constitutional practices.Conventionalist ideas were a central part of classical common lawideology, (44) and the importance of focal points is an indispensablepart of the justification for the common law approach to constitutionalinterpretation. If past decisions were respected only because theyreflected accumulated wisdom, then there would be no obvious reason togive priority to past American decisions. Decisions from other countriesmight be equally useful, indeed more useful, if they arose fromcircumstances that more closely resemble current American conditions.The present-day United States obviously resembles late-twentieth-centuryCanada more closely than it resembles nineteenth-century America.Information on how current Canadian law resolves certain issues mightplay a role in American legal arguments. But Canadian law, howeverrecent and relevant, does not have the precedential effect of even adistant American decision. That is a settled aspect of our practices,and the common law account, in itself, does not fully explain it.

If there is a justification for that aspect of our practices, thatjustification must rest on conventionalist ideas. American law couldsurely profit from a more systematic consideration of what othercountries do. (45) But it would be very difficult for a decisionmaker tohave to consider an undifferentiated collection of precedents andinstitutions from multiple legal cultures. It is much more manageable todeal just with the relatively coherent body of American (national) law.The potential gain from drawing on the accumulated wisdom of manysocieties would be outweighed by the unmanageability of the task. Arelatively coherent body of law is at hand; that body of law is notobviously inferior to others; and, strictly as a matter of culturalfact, there is widespread acceptance of the use of that body of law. Theconventionalist argument is that, in these circumstances, it is betterto look only to that body of law.

D. Conventionalism and the Overlapping Consensus

Jefferson's argument suggests that any form of adherence todecisions made in the past is irrational or, worse, both irrational andoppressive. The common law and conventionalist justifications for payingattention to the Constitution are consistent with that skepticalapproach: They provide reasons for adhering to the text of theConstitution, and (to a limited degree) original understandings, that donot depend on anything that even a skeptical Jeffersonian could fairlycall ancestor worship. But it is also important that the common law andcommon ground justifications not require one to adopt Jefferson'sform of skepticism.

The solidarity needed to make a functioning political society hasmany cultural and emotional sources. It is not reasonable to expectpeople to continue to adhere to political institutions without having,or developing, affective ties to those institutions. A justification fora legal practice cannot treat those affective ties as misguided, or asthe product of a kind of useful delusion. The justification cannotitself have a quasi-ethnic or quasi-religious character, but it has tobe able to appeal to people who, unlike Jefferson, attach moralimportance to the relationship between generations.

Someone who believes that being an American means joining anongoing tradition that began with the Framers can--indeed, should--fullyembrace the common law and common ground justifications. The common lawapproach provides a way to understand the idea of an ongoing Americantradition. The common ground approach can be understood to assertprecisely that one thing Americans have in common is allegiance to thetext of the Constitution. The skeptic would adhere to the text (in theway required by the common ground argument) just because it is usefuland fair to do so. People with more elaborate views about the provenanceof the Constitution will have other reasons for adhering to the text.But those people can also fully endorse the common ground argumentswithout feeling that they must regard their more elaborate views aboutAmerican traditions as irrational. Those more elaborate views just givethem additional, strong reasons to endorse the common ground arguments.

The common law and common ground justifications might, of course,require some people to modify views they hold about the Constitution.Someone who believed that the Framers were divinely inspired would findmuch to accept in the common law and common ground accounts,but--depending on exactly what it means to be divinely inspired--mighthave to forgo some claims, as well. The common law and common groundaccounts do not justify an uncritical adherence to the originalunderstandings, for example. But for two reasons, it is acceptable forthe common law and common ground accounts to require people to modifytheir understandings of the Constitution, so long as those accountsallow room for a wide range of conceptions of American traditions andAmerican identity and do not require skepticism of Jefferson'skind.

First, the common law and common ground justifications providereasons to adhere to the Constitution that can be, and should be,accepted by everyone. To go beyond those justifications is to impose aparticular quasi-ethnic (or quasi-religious) conception of Americanidentity. That should not be the basis for governing a diverse liberalsociety. People are entitled to hold such a conception of Americanidentity and not to have their views disparaged, but people cannotinsist that others comply with that conception. They can insist thatothers go as far as the common law and common ground justificationsdictate, but they cannot insist on more.

Second, the common law and common ground accounts are consistentwith current practices in the way that a more thoroughgoing commitmentto the original understandings, for example, is not. As I have said,much of current constitutional law conforms to the common law model.Someone who wanted to reject the common law model in favor of anoriginal understanding approach not only would be relying on a sectarianjustification but would be overturning important and thoroughly settledconstitutional principles about race and gender discrimination, freedomof expression, and a number of other subjects. And, as I am about toargue, the common ground approach is consistent with the way in whichthe text of the Constitution operates in practice.

V. CONSTITUTIONAL INTERPRETATION AFTER JEFFERSON

The common law and common ground justifications provide an answerto Jefferson's question that does not require people to accept aspecific, sectarian conception of American citizenship. But thesejustifications are important for more concrete purposes as well. Theyaccount for many aspects of our constitutional system that are wellsettled, but that seem, at first glance, hard to explain.

In particular, these justifications explain why the text of theConstitution seems to matter more for less importantquestions--seemingly an inversion of the way the Constitution should beinterpreted. They also explain a kind of verbal fetishism that seems tocharacterize the way the text is used: The words of the text can justifya decision even when the original understandings of the words wouldrequire a different decision. And these justifications explain whyarguments that do invoke original understandings are so oftencharacterized by "law-office history"--the selective use ofsources to support a position, rather than an effort truly toreconstruct the understandings of an earlier time--and why the use oflaw-office history is, despite the dismissive term, acceptable.

Finally, the common law and common ground justifications provideanswers to some unsettled problems of constitutional interpretation.They explain what should be done when an apparently well-establishedline of precedent appears to be inconsistent with the ordinary meaningof the text. And they shed light on a question that is not currentlysalient but that may become so: whether the effect of an apparentlyauthoritative command from the People--an amendment of the Constitutiondesigned to secure a specific result--can change over time.

A. Why the Text Matters More for Less Important Questions

It appears to be a persistent feature of our constitutionalpractice that the text of the Constitution matters most when the leastimportant issues are at stake. "The Court offers a formal analysisin insignificant cases ... and formless balancing in more seriouscases." (46) This seems anomalous: If the text is important becauseof the authority of those who adopted it, or because it represents thewill of an intergenerational community, then the text should be theprimary source of law when the issues are most important. But instead,when the most momentous issues are on the table, the text tends todisappear. When the questions are relatively technical, the text isoften the principal focus.

The so-called structural provisions of the Constitution--theprovisions of the original Constitution that allocate powers among thebranches and between the states and the federal government--provide theclearest examples. Many of the structural provisions of the originalConstitution are relatively precise. One would expect those provisionsto be applied in a way that emphasized the text and eschewed moregeneral arguments of policy. As several commentators have noted,however, the Supreme Court's decisions in this area seem tovacillate between the highly "formalistic" and the more"functional." In the "formalistic" decisions, theCourt's opinion focuses closely on the language of the Constitutionand pays little attention to more general policy concerns; the"functional" opinions pay little attention to the text of theConstitution and instead emphasize, for example, the policies underlyingthe separation of powers, or the policies that might justify legislationthat seems inconsistent with the separation of powers. (47)

But the vacillation is not random. When the Court had to decidewhether the President could seize steel mills, assert executiveprivilege in a criminal investigation of his associates, or conclude anagreement for the release of hostages held by a foreign power--in,respectively, Youngstown Sheet & Tube Co. v. Sawyer, (48) UnitedStates v. Nixon, (49) and Dames & Moore v. Regan (50)--it paidlittle attention to specific textual provisions. Indeed, JusticeJackson's celebrated opinion in Youngstown Sheet & Tube Co.,which provided the template for much of the law in the area, begins withan explicit disclaimer about the "poverty of really useful andunambiguous authority" in the text and in other historical sources.(51) When the Court ruled that the President is absolutely immune fromcivil actions arising out of the conduct of his office, it brushed asidea substantial textual argument to the contrary and relied entirely onfunctional concerns. (52) In its opinion upholding the independentcounsel statute, the Court rejected the argument that the prosecutorialfunction is part of the "Executive Power" vested in thePresident by Article II, Section 1, by asserting, in a similarfunctional vein, that the statute did not "unduly interfer[e] withthe role of the Executive Branch." (53) The opinion upholding theUnited States Sentencing Commission took a similar approach. (54)

Textual arguments become central only when the stakes are lower.Perhaps the most notoriously "formalist" opinion is INS v.Chadha, which declared the legislative veto unconstitutional. (55) TheCourt in Chadha relied on what it characterized as "[e]xplicit andunambiguous provisions of the Constitution" (56) and pointedlyrefused to consider whether the legislative veto was "efficient,convenient, [or] useful in facilitating functions of the government?(57) There is a difference of opinion over how important Chadha was,(58) but it is at least clear that the legislative veto was seldomexercised, (59) that Congress had plausible substitutes for thelegislative veto, (60) and that the decision in Chadha did notapproach--in practical significance or political salience--the decisionsin Youngstown Sheet and Tube, United States v. Nixon, Dames & Moore,or, probably, the independent counsel or sentencing commission cases.Moreover, whatever the significance of Chadha, the Court followed aformalistic approach similar to Chadha's in relying on the text toresolve a series of relatively technical questions under theAppointments Clause, questions that were indisputably less importantthan many of those involved in the more "functional"decisions. (61)

In a sense, this pattern should not be surprising: When the Courtdecides cases concerning intensely controversial subjects like equalityor reproductive freedom, text and original understandings are left farbehind. In fact, in area after area--freedom of expression, statesovereign immunity, the Takings Clause--it is difficult to identify anycase in which the language of the Constitution plays an operative rolein the analysis.

According to the usual justifications for adhering to the text--theAustinian account or one that emphasizes intergenerationalcommunity--this practice is perverse. But conventionalism makes sense ofit. When the stakes are high, people are less likely to accept asolution just for the sake of having the matter resolved with minimalfriction. They are willing to live with controversy as the price oftrying to resolve the issue in the way they think is correct. The textbecomes important only when it is more important that the issue besettled than that it be settled just right. Some separation-of-powersissues are like that. It is important to have settled which acts arevalid, which political actor must make which decision, and the like. Theabstract correctness of those decisions often matters less than havingthem decided; the benefits of having the matter settled outweigh thecosts of reaching what might be the wrong answer. Consequently, ourpractices are more formalistic.

There are certainly some exceptions to the generalization that thetext matters most for the least important questions, but thoseexceptions tend to bear out the conventionalist justification: Theyoccur when the costs of unsettlement are so great that even importantprovisions should be interpreted formalistically. The provision thateach state have two senators is an example. It is unthinkable that acourt would declare that provision unconstitutional as a violation ofthe principle of one person, one vote--even though such a result wouldprobably be no more at odds with the original understandings than theSupreme Court's actual reapportionment decisions. But here, too,the adherence to the provision is best understood on conventionalistgrounds. The provision is entirely clear (indeed, it is entrenched inthe Constitution, purportedly against constitutional amendments--ArticleV provides that no state may be deprived of its equal representation inthe Senate without its consent). (62) It is extremely salient, and thesubject it addresses is very sensitive because it affects what counts asa validly enacted law. A constitutional decision at odds with the clearlanguage would therefore be highly destabilizing, and theconventionalist argument for adhering to the ordinary meaning of thisprovision--instead of instituting a common law movement toward a stateof affairs that might be more justifiable as a matter of morality--isvery strong. (63)

B. Verbal Fetishism and the Incorporation Debate

The conventionalist answer to Jefferson's argument guides theinterpretation of the text in a straightforward way. It suggests that,other things equal, the text should be interpreted in the way bestcalculated to serve as common ground: to provide a focal point ofagreement and to avoid the costs of reopening every question. In a sensethere is nothing "inherent" in the text, whatever that mightmean, that tells us that the President's "Term of fourYears" means four years on the Gregorian calendar. Nor do weinterpret the text that way because we want to maintain fidelity tolong-ago generations. We break faith with them (if that is the right wayto put it) over much more important issues. We interpret the text in theobvious and natural way because that is most likely to settle the issueonce and for all without further controversy.

The same is true when the text only narrows the range ofdisagreement instead of specifying an answer. The reason we do notengage in fancy forms of interpretation that would permit us to questionthe length of the President's term, or the citizenshipqualification, or other "textual" resolutions of issues, isthat the leading function of the text--to provide a ready-made solutionthat is widely acceptable--would be subverted by interpretations of thetext that struck most people as contrived.

There is, of course, no issue about the President's term andthe Gregorian calendar. But in other contexts, this implication ofconventionalism becomes quite important. In particular, it explains theaspect of our practices that might otherwise seem like verbalfetishism--attaching undue significance to the happenstance of whatwords are used in the text--including the role that text played in thedebate over whether the Fourteenth Amendment incorporates the Bill ofRights.

Perhaps the most vivid illustration of this approach to the text isthe interpretation of the provision of the Sixth Amendment that gives acriminal defendant the right "to have the Assistance of Counsel forhis defence." (64) There is little doubt that the originalunderstanding of this provision was that the government may not forbid acriminal defendant from hiring a lawyer with his own money. (65) Today,of course, Gideon v. Wainwright (66) and subsequent decisions haveestablished that in serious criminal prosecutions the government mustprovide counsel even for defendants who cannot afford it. That rule fitscomfortably with the language, and the language has been used to supportit. But in fact it is just a coincidence--almost a matter ofhomonymy--that the modern right to counsel is supported by the languageof the Sixth Amendment. The drafters of the Sixth Amendment might haveused some other language to express their intentions, language thatwould have made it more difficult to find support for the modern right(for example, that the accused shall have the right "to retaincounsel for his defense").

At first glance, it seems odd to use the language of the SixthAmendment to support Gideon when it is only a coincidence that it doesSO. (67) But on the conventionalist account, this use of the languagebegins to make sense: So long as a court can show that itsinterpretation of the Constitution can be reconciled with some plausibleordinary meaning of the text--so long as it can plausibly say that ithonors the text--the text can continue to serve the conventionalistfunction of narrowing disagreement. Original understandings are oftenhard to ascertain and are therefore unlikely to become focal points inany event; a departure from them is therefore not very costly. But oncea judge or other official asserts the power to act in ways inconsistentwith the text, the ability of the text to serve the common groundfunction is weakened. That is why it makes sense to adhere to the texteven while disregarding the Framers' intentions.

Probably the most impressive example of this aspect of ourpractices is the application of the Bill of Rights to the states throughthe Fourteenth Amendment, the so-called incorporation doctrine. The Billof Rights originally applied only to the federal government. In a seriesof decisions, mostly in the 1960s, the Supreme Court applied to thestates essentially all of the provisions of the Bill of Rights thatprotect criminal defendants. (68) The effect was to bring about alarge-scale reform of the criminal justice systems of the states. Thesedecisions were the culmination of a protracted argument, mostly betweenJustices Black and Frankfurter (and their respective followers outsidethe Court), over the appropriateness of incorporation. (69)

Three things seem clear about the incorporation issue. First, itwent from being a subject of intense controversy--probably the mostcontroversial issue in constitutional law between the mid-1940s andmid1950s, and one of the most controversial for a decade or morethereafter--to being a completely settled issue. The incorporationcontroversy involved the most divisive matters--criminal justice,federalism, and, implicitly, race. But by the mid-1980s, even the mostsevere critics of the Warren Court accepted incorporation, and some ofthem aggressively embraced it.

Second, incorporation came to be a settled issue even though it wasnot widely accepted that incorporation was consistent with theintentions of the Framers of the Fourteenth Amendment. During the timethat incorporation took hold in the legal culture, the received wisdomwas that the Framers of the Fourteenth Amendment did not intendincorporation. (70) Recent historical scholarship has seriouslyquestioned that received wisdom. (71) But incorporation becameuncontroversial long before any new historical understanding took holdin the legal culture generally. What the incorporation controversy andits denouement reveal about our practices is that--so far as theacceptance of incorporation in the legal culture was concerned--theFramers' intentions were essentially beside the point.

Third, and most striking, despite the fact that there are textualdifficulties with incorporation that its proponents never fully workedout--under the incorporation doctrine, the Due Process Clause of theFourteenth Amendment seems, at first glance, redundant (72)--thewidespread acceptance of incorporation has something to do with its useof the text. It helped enormously that the Court was reforming statecriminal justice systems on the basis of conceptions that had some linkto the text of the Bill of Rights, rather than on the basis ofprinciples that did not have as explicit a textual foundation. It seemsunlikely that the Court's reform project would have succeeded inthe way it did if the Court--instead of invoking the text of the Bill ofRights to aid its campaign--had simply devised a new set of rules forthe states to follow, however sensible those rules might have been.

Since there was no general belief that the Framers (of either theBill of Rights or the Fourteenth Amendment) contemplated that the textwould be viewed in this way, and since the text doesn't immediatelylend itself to that interpretation, why should the textual basis ofincorporation matter so much? If we don't care about what theFramers thought they were doing, why do we care so much about the wordsthey wrote? The conventionalist answer is that by connecting reforms ofstate criminal justice systems to the text of the Bill of Rights, theincorporation doctrine used the Constitution as a focal point. That is,in the face of widespread disagreement about criminal justice, the Courtcould take advantage of the fact that everyone thinks the words of theConstitution should count for something. People who might have disagreedvigorously about the merits of various reforms of the criminal justicesystem could all treat the specific rights acknowledged in the Bill ofRights as common ground that would limit the scope of theirdisagreement. A reform program that had a plausible connection to thetext of the Bill of Rights was therefore more likely to be accepted thanone that did not.

It is in this sense that incorporation is "consistent with theConstitution" in a way that a nontextual program of criminal lawreform would not be. The point is not that the Framers, or the people,acting in 1789 or 1868, commanded the reforms that the Court undertook.As many other examples show, those are neither necessary nor sufficientconditions of a constitutional development. The Court undertook thereforms of the incorporation era, and the reforms lasted, because theymade moral and practical sense, and because, by virtue of theirconnection to the text, society could reach agreement (or at leastnarrow the range of disagreement) on a legal outcome even in the face ofdeep moral disagreement.

C. Law-Office History

Historians, understandably, often criticize the use of history inlegal controversies; they say that lawyers' use of history seems toinvolve not an effort to reconstruct the climate of an earliergeneration but rather a picking and choosing of sources that willsupport a thesis that is arrived at for other, normative reasons. (73)The characterization seems generally accurate; the training of lawyersand historians is quite different. And as much as legal academics do"law-office history," courts and advocates--even the mosthistorically sophisticated among them--are far worse. The selectivity isovert, and the effort to arrive at a contextual understanding of thepast is all but nonexistent.

The use of law-office history is a standing rebuke to thetraditional explanations for why we care about the Framers. If theobjective of constitutional interpretation were to maintain fidelity orcontinuity with the normative vision of earlier generations,lawyers' and judges' characteristic uses of history would be ascandal. Lawyers are constantly reworking the alleged normative visionof earlier generations to serve their own, present-day, purposes. Butthere is no reason to think lawyers and judges will stop usinglaw-office history any time soon; it appears to be a persistent featureof the legal culture. (74)

The common law and common ground justifications--particularly theformer--do explain this practice, however, and show that it is notnecessarily a scandal. We treat the views of the Founding generation inthe way we would treat precedents. Sometimes we accept those views,sometimes we modify them, sometimes we just reject them--just as withold precedents. A lot depends on what has happened since the time theFramers' statements were made. If subsequent developments seem tobear out the wisdom of what was said in 1787, the fact that it was saidin 1787 is an additional point in its favor. But if an argument made bya prominent Framer quickly disappeared and has had no influence in theintervening years, we seldom revive it. The use of law-office historywould be a scandal if it were generally determinative of constitutionalissues, but it is not. Evidence of original understandings has onlylimited value, and then only if it is validated by practice in theintervening years, or by normative arguments about fairness or goodpolicy. So limited, this use of history is defensible. (75)

This understanding of the use of the Framers' intentionsexplains several things that the usual accounts cannot explain. On anAustinian view, one would try to identify some sovereign, and its, ortheir, intentions would be binding. But that is not how evidence oforiginal intentions is used in our system. Original intentions orunderstandings are seldom decisive. On several important issues, currentlaw is at odds with original understandings. Notoriously, the originalunderstanding of the Fourteenth Amendment was that school segregationand gender discrimination were acceptable, at least according to anear-unanimous consensus. There are many other examples as well. (76)

Also, it is quite unclear whose intentions or understandingsmatter. If there is an Austinian sovereign behind the Constitution, itis probably the people who attended the state ratifying conventions.This appears to have been Madison's view, at least at one point.(77) But materials from the ratifying conventions are citedindiscriminately with many other kinds of materials; they have nospecial status. One can use Madison's notes of the Convention togood effect even though they were not available to the people whoratified the Constitution. The Federalist Papers are treated as anauthoritative source, although they were advocacy pieces that one wouldexpect not to lay bare the most controversial aspects of theConstitution. Statements of the Framers are cited indiscriminately withthose of prominent non-Framers (like Jefferson) and those ofparticipants in the state ratifying conventions. Some Framers count formore than others; a good quotation from Madison is probably worth morethan evidence of the views of the members of several state ratifyingconventions. On an Austinian view, the most important task would be toidentify the sovereign; only its, or their, intentions matter. If theobjective is to maintain our connection to the American People, definedover time, then we should be careful to try to determine what the actualearlier generations believed, not just what a few very prominentindividuals thought. But our actual use of historical evidence seemsdeliberately to ignore these very issues.

Once we understand that the Framers' views are notauthoritative commands but are instead akin to precedents, however,these practices become less puzzling. We don't carefullydistinguish Framers from ratifiers because they all matter a little.Those whose judgments we think we have other reasons to trust, likeMadison, count for more, in the same way that an opinion by Holmes orBrandeis counts for more. But we will contravene even a clear originalunderstanding when we are convinced that it is wrong, just as we willoverrule a precedent sometimes.

That is why a persuasive argument that, say, James Madison wouldhave disapproved of the independent counsel statute will, in practice,advance the case for the unconstitutionality of the statute, even if wecannot show that Madison's understanding was widely shared; butstrong evidence that the Fourteenth Amendment was widely understood notto have anything to do with voting rights has simply been cast aside.Clear evidence of the original understanding would be crucial if wewere, contra Jefferson, subordinating ourselves to the decisions of anearlier generation. But instead of doing that, lawyers makingconstitutional arguments follow the common law model. They makeselective use of the wisdom of the past, modified by normativeconsiderations, to address current problems. That use of the past is nothistory, in the usual sense--but then it is also not ancestor worship.It is a use of the past that is consistent with Jeffersonian skepticism,and it illustrates another way in which the common law and common groundaccounts not only answer Jefferson but fit with settled legal practices.

D. Precedent Versus Text

What should be done when a consistent and long-standing line ofprecedent seems squarely in conflict with the text of the Constitution?Should the Supreme Court adhere to the precedents, even after it becomesconvinced that this conflict exists? Self-styled textualists andoriginalists answer in the negative; they assert that the precedent,which is not the "real Constitution," must give way to thetext, which is. (78) But this claim cannot be justified, at least notwithout much more argument.

The Fourth Amendment provides an illustration. Current FourthAmendment law--which presumptively requires a warrant before a searchmay be conducted--is hard to reconcile with the plain language of theFourth Amendment. The Fourth Amendment, read naturally, seems not torequire warrants, but only to limit their availability. The originalunderstanding, so far as we can tell, seems to bear out that reading ofthe text. Here again, the established gloss seems to have superseded thelanguage; the "warrant requirement" has been read into thetext, in somewhat the same way that "separation of church andstate" has been read into the Establishment Clause.

It has been powerfully argued that, notwithstanding the precedents,the Fourth Amendment should be interpreted in a way that is consistentwith the plain language and original understandings: Searches should beallowed, even without a warrant, if they are reasonable, and the FourthAmendment's limit on the availability of warrants should be viewedas a way of keeping government officials from claiming immunity againstcivil suits. (79) Good arguments can be made in support of this view.But the text is among the least important of them. If this revisionist view of the Fourth Amendment should be adopted, it should be adoptedprincipally because it is more sensible--for example, if the warrantrequirement serves no useful purpose in restraining the power to searchand operates only as an arbitrary limit on law enforcement.

If that argument in support of the revisionist view of the FourthAmendment is correct, the fact that the text supports it is significantfor two purposes. First, it weakens the argument that departing from the"warrant requirement" would be destabilizing inconventionalist terms. The presence of textual support for therevisionist interpretation would help ensure that the common groundfunction of the text would be unimpaired; indeed, the ability of thetext to serve as common ground might be enhanced by a decision that moreobviously followed the text. Second, the language of the Amendmentserves approximately the same role as an old precedent. The language ofthe Amendment strengthens the case for the revisionist interpretation ofthe Fourth Amendment in roughly the same way that a Marshall Courtprecedent would: It suggests that some people whose views we should takeseriously supported the revisionist interpretation.

The one thing that should not be accepted, however, is the claimthat changing Fourth Amendment doctrine to make it more consistent withthe text is a matter of jettisoning "mere precedent" in favorof "the Constitution." The priority of the text has to bejustified. Sometimes conventionalism justifies it. But in this instancemore justification is needed. The text has been heavily glossed,providing another focal point, and the current law is not whollyirreconcilable with the text. There is an accumulation of precedentfavoring the current view. If we insisted that the Framers'(presumably) different view about warrants is enough to overturn thataccumulated precedent, we would be doing what Jefferson condemned:exalting the judgments of an earlier generation without adequate reason.The revisionist view may or may not be correct in the end. But the casefor the revisionist view must rest primarily on its claim to superiorityas a matter of policy, and only secondarily on the text.

E. The Constitution and Commands

Finally, there is an issue that is not currently controverted butthat could arise, were the Constitution to be amended again. EvenJefferson did not deny that the current generation may govern itself.But the common law and common ground views do not seem to leave any roomfor that. Does the Austinian view--that the Constitution is, in somesense, a legitimate command that people are obligated to obey--have anyremaining significance?

All the provisions of our Constitution that give rise to litigation are quite old. In recent years there appear to have been no significantcases decided under any amendment more recent than the Twenty-First,added in 1933. (There was litigation under the Twenty-Fourth Amendment,outlawing poll taxes, soon after its adoption, but such litigation seemsunlikely to recur, at least on a large scale.) As a result,constitutional law today does not really illustrate the intertemporalnature of interpretation. Everything is more than a generation old,however generations are counted; the common law and common groundjustifications for obedience therefore predominate.

But things do not have to remain that way. If an amendment wereadded to the Constitution, the Austinian justification could reassertitself, for a time. In virtually every session of Congress, for example,a constitutional amendment is proposed that would specify, in one way oranother, that "voluntary prayer" is to be permitted in thepublic schools. (80) It is generally understood that the purpose of suchan amendment is to overrule a series of Supreme Court decisionsbeginning with School District v. Schempp, (81) which held that it wasunconstitutional for a public school to conduct teacher-led devotionalBible reading in the classroom. Under Schempp and other decisions, thefact that a student could leave the classroom during the prayer was notenough to make the practice constitutional.

Suppose such a constitutional amendment were adopted, after adebate in which it was generally acknowledged that the purpose of theamendment was to overrule the Supreme Court's decisions. How shoulda court, or any other conscientious official (or citizen) interpret suchan amendment? The answer to this question should change over time.

Immediately after the amendment was adopted, it seems clear thatthe correct interpretation of the amendment would be that it permitsschool prayer of the kind banned by Schempp. This is true even thoughthe text, read in isolation, does not compel such a result. It iscertainly plausible to say that school prayer of that kind is not"voluntary." Indeed, that is probably the best way tounderstand the basis of the Supreme Court's decisions (although itis not quite what the opinions said). But if the public debate on theamendment proceeded on the assumption, generally shared by all involved,that the issue was whether the Court's decision should beoverruled, then it seems quite clear that it would be wrong for thecourts or anyone else to interpret the amendment differently. In thosecircumstances, seizing on the term "voluntary" to produce adifferent result immediately after the amendment was adopted would be akind of trickery, an action taken in bad faith.

If this is so, then one consequence is that originalism is, to adegree, rehabilitated from various attacks other than Jefferson's.Obviously there will be some problems in asserting that "everyoneknows" or "everyone understood" that the purpose of theamendment was to overrule Schempp. Some people, somewhere, might nothave understood that. In fact, during the debate some people wouldundoubtedly have made the argument that the amendment, as drafted, didnot accomplish the effect the drafters sought, because it referred onlyto "voluntary" prayer. But it would still be possible forpeople living at the time to say, with confidence, that the provisionwas generally understood to overrule Schempp. To that extent, one of thecommon criticisms of originalism--that it is impossible in principle toidentify an original understanding--seems mistaken.

Over time, though, the interpretation of a voluntary prayeramendment could appropriately change. For Jefferson's reason, itwould be acceptable for an interpreter to say, a few decades down theroad, that although teacher-led school prayer was considered"voluntary" when the amendment was adopted, we have now cometo understand, in the light of experience, that such prayer is neverreally voluntary, and that therefore the amendment should be understoodonly to allow prayer that is not officially sponsored. This would beinconsistent with the original understanding of the amendment, butconsistent with its language. Such an explicit reversal and rejection ofthe acknowledged original intent might seem jarring. But this is, insubstance, no different from the most generally accepted justificationfor Brown v. Board of Education. (82) At one time it was thought thatschool segregation was consistent with equality; now we understandotherwise. Similarly, in Minor v. Happersett, (83) the Supreme Court,citing textual and historical evidence, held that the FourteenthAmendment did not enfranchise women because it did not apply to voting;although the specific holding in Minor had to be reversed byconstitutional amendment, its reasoning has now been emphaticallyrejected, without any serious reconsideration of the historical record.The hypothetical school prayer amendment would be different to theextent that it reversed an earlier Supreme Court decision, and thiswould be an additional reason for caution in moving away from theoriginal understanding of the amendment. But otherwise the cases areparallel.

The justification for such a break with original understandingswould have to be, as usual, a common law one. One would have to showthat, even giving due deference to the judgment of those who adopted theprovision, the conclusion they reached should now be overturned. Thatshowing would be easier to make if there were a progression of cases inwhich the criterion of "voluntariness," understood to permitschool prayer, became more and more difficult to apply and was graduallyeroded. In any event, one could not say that the language wasirrelevant; under the hypothetical amendment, if school prayer were tobe banned, it would have to be on the basis of an argument that wasconsistent with the text in some way.

One problem, of course, would be to identify the point at which acourt would be justified in abandoning the original intentions--thepoint comparable to Jefferson's nineteen years. Obviously thiscannot be done with precision. The problem of defining this point isless severe than it might seem--less severe than it was for Jefferson,who had to choose an expiration date--because the text continues to behonored (for conventionalist reasons), and even the originalunderstanding has the force of a precedent. And as with many things in acommon law system, the judgment will depend on factors that cannot bereduced to a rule: not just the passage of time but the extent to whichcircumstances have changed or new facts have emerged, the difficulty inadministering the old rule in contested cases, and so on. The one thingthat seems clear is that the interpretation of legal provisions cannotremain static. That is one overriding lesson of Jefferson'sprinciple.

CONCLUSION

In the end, the way to answer Jefferson's question--how canone generation be permitted to bind another?--is, one might say, toaccommodate Jefferson's skepticism without embracing it. Do we oweobligations of fidelity to the generations that came before us? Shouldwe see ourselves as participants in an ongoing, intergenerationalcommunity of Americans? People should be able to answer those questionsin different ways. The binding force of the Constitution should notdepend on an affirmative answer to them; but constitutionalinterpretation should also not require everyone to accept a negativeanswer.

In some ways, it is easy to overstate the extent to which theConstitution does bind us. Much of constitutional law is a kind ofcommon law, developed by precedents and traditions that depart fromoriginal understandings and, in some instances, are in tension with thetext. To that extent, Jefferson's question need not be answered.But Jefferson's question cannot be wholly avoided, because the textof the Constitution is, without question, still part of the law today.The text binds us because it provides a kind of common ground--a way toresolve certain disputes, or at least to narrow the range ofdisagreement. The most resolute Jeffersonian skeptic can understand whythat is a reason to adhere to the Constitution; but so can people whoreject such skepticism and believe the Constitution to be an integralpart of an ongoing American tradition to which they themselves belong.

The particular genius of the text of the Constitution is not thatit solves all our problems, or even that it solves the most momentousones. Anyone who looks to the text or the original understandings forthose answers not only will have to deal with Jefferson's principlebut will seriously misunderstand American constitutional law. But thetext of the Constitution does solve some problems, and it helps advanceus toward a solution of others. Jefferson's principle does not keepus from taking advantage of the fact that those earlier generations havegiven us something very useful.

(1.) For recent general efforts to establish that the text and theFramers' intentions should govern constitutional interpretation,see ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THELAW (1997); and Akhil Reed Amar, The Supreme Court, 1999 Term--Foreword:The Document and the Doctrine, 114 HARV. L. REV. 26 (2000). On theparticular areas mentioned in the text, see, for example, Printz v.United States, 521 U.S. 898, 904-15 (1997); United States v. Lopez, 514U.S. 549, 584-602 (1995) (Thomas, J., concurring); Harmelin v. Michigan,501 U.S. 957, 961-94 (1991) (plurality opinion of Scalia, J.); Wallacev. Jaffree, 472 U.S. 38, 91-114 (1985) (Rehnquist, J., dissenting); andJack N. Rakove, The Second Amendment: The Highest Stage of Originalism,76 CHI.-KENT L. REV. 103, 106-07 (2000) (describing the near-exclusivereliance on originalism by advocates of an individual Second Amendmentright to bear arms).

(2.) See, e.g., RICHARD H. FALLON, JR., IMPLEMENTING THECONSTITUTION 13-25 (2001); Paul Brest, The Misconceived Quest for theOriginal Understanding, 60 B.U.L. REV. 204 (1980). On the history ofattacks on originalism, see Barry Friedman & Scott B. Smith, TheSedimentary Constitution, 147 U. PA. L. REV. 1, 20-21 (1998).

(3.) Letter from Thomas Jefferson to James Madison (Sept. 6, 1789),in 15 THE PAPERS OF THOMAS JEFFERSON 392, 396 (Julian P. Boyd &William H. Gaines, Jr., eds., 1958) [hereinafter Letter of Sept. 6,1789].

(4.) Id. at 392 (emphasis omitted).

(5.) Id.

(6.) Id. at 395.

(7.) Id. at 396.

(8.) See Letter from Thomas Jefferson to Samuel Kercheval (July 12,1816), in THOMAS JEFFERSON, WRITINGS 1395, 1402 (Merrill D. Peterson ed., 1984)[hereinafter Letter of July 12, 1816]; see also Letter ofSept. 6, 1789, supra note 3, at 393-94.

(9.) Letter of Sept. 6, 1789, supra note 3, at 396.

(10.) See DAVID HUME, Of the Original Contract, in POLITICALWRITINGS 164, 168 (Smart D. Warner & Donald W. Livingston eds.,1994).

(11.) See, e.g., THOMAS PAINE, Rights of Man, in RIGHTS OF MAN,COMMON SENSE 1, 12 (1994) [hereinafter PAINE, Rights of Man]; THOMASPAINE, Common Sense, in THE LIFE AND MAJOR WRITINGS OF THOMAS PAINE 1,29, 37 (Philip S. Foner ed., 1961).

(12.) See NOAH WEBSTER, On Government, in A COLLECTION OF ESSAYSAND FUGITIVE WRITINGS ON MORAL, HISTORICAL, POLITICAL, AND LITERARYSUBJECTS 67-68 (Boston, Thomas & Andrews 1790). See generallySTEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERALDEMOCRACY 137-50 (1995).

(13.) See Letter of Sept. 6, 1789, supra note 3.

(14.) See JOHN AUSTIN, The Province of Jurisprudence Determined, inTHE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF THE STUDY OFJURISPRUDENCE 1, 36-42 (H.L.A. Hart ed., 1954).

(15.) For an especially clear statement of this view, although oneprimarily concerned with statutory interpretation, see RICHARD A.POSNER, THE PROBLEMS OF JURISPRUDENCE 247-61 (1990). The view is alsoclearly expressed, although less self-consciously, in ROBERT H. BORK,THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 5, 145, 178,300 (1990). See also Frank H. Easterbrook, Abstraction and Authority, 59U. CHI. L. REV. 349, 363, 375 (1992); Henry P. Monaghan, Our PerfectConstitution, 56 N.Y.U. L. REV. 353, 353-60 (1981). The idea that theobjective of constitutional interpretation is to translate thestatements of an authoritative group of lawgivers into terms moreapplicable to today's issues also reflects this Austinian view. SeeLawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1182(1993) ("Firm within our legal culture is the conviction that ifjudges have any duty it is a duty of fidelity to texts drafted byothers, whether by Congress or the Framers....").

(16.) RONALD DWORKIN, LAW'S EMPIRE (1986) seems to me to takethis second view. Especially relevant is id. at 188-202. Jeremy Waldron,Precommitment and Disagreement, in CONSTITUTIONALISM: PHILOSOPHICALFOUNDATIONS 271,287-92 (Larry Alexander ed., 1998) is more explicit indefending the notion of an intergenerational community. Frank Michelman,Law's Republic, 97 YALE L.J. 1493, 1515-24 (1988) contains anilluminating criticism of the Austinian aspects of Dworkin's view,and Frank Michelman, Constitutional Authorship, in CONSTITUTIONALISM:PHILOSOPHICAL FOUNDATIONS, supra, at 64, appears to endorse an idea ofintergenerational community as well. Among recent writers who endorse aview of this kind, see, for example, Friedman & Smith, supra note 2.See also id. at 80-85; Symposium, Fidelity in Constitutional Theory, 65FORDHAM L. REV. 1247 (1997).

(17.) Edmund Burke's statement of this position is classic:

 [O]ne of the first and most leading principles on which the commonwealth and the laws are consecrated, is lest the temporary possessors and life-renters in it, unmindful of what they have received from their ancestors, or of what is due to their posterity, should act as if they were the entire masters.... By this unprincipled facility of changing the state as often, and as much, and in as many ways as there are floating fancies or fashions, the whole chain and continuity of the commonwealth would be broken. No one generation could link with the other. Men would become little better than the flies of a summer.

EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 192-93 (ConorCruise O'Brien ed., Penguin Books 1968) (1790). In the legalliterature, the leading statement is perhaps Anthony T. Kronman,Precedent and Tradition, 99 YALE L.J. 1029 (1990).

(18.) 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 154-62 (1991)seems essentially to take this view, as does JED RUBENFELD, FREEDOM ANDTIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT (2001). Mark Tushnet,The Supreme Court, 1998 Term--Foreword: The New Constitutional Order andthe Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29,99-103 (1999) also appears sympathetic to this view.

(19.) The locus classicus of this idea is DAVID HUME, A TREATISE OFHUMAN NATURE 489-90 (L.A. Selby-Bigge ed., Oxford 2d ed. 1978) (1740).See also DAVID HUME, AN INQUIRY CONCERNING THE PRINCIPLES OF MORALS 125(Charles W. Hendel ed., Bobbs-Merril 1981) (1751). For moderndiscussions, see, for example, DAVID K. LEWIS, CONVENTION 3-4, 36-42(1969); David Gauthier, David Hume, Contractarian, 88 PHIL. REV. 3,22-24 (1979); Andrei Marmor, Legal Conventionalism, 4 LEGAL THEORY 509,515-27 (1998); and Gerald J. Postema, Coordination and Convention at theFoundations of Law, 11 J. LEGAL STUD. 165, 182-97 (1982). FrederickSchauer, Statutory Construction and the Coordinating Function of PlainMeaning, 1990 SUP. CT. REV. 231, 253-56, draws the specific connectionto reliance on the language of an authoritative text.

(20.) See, e.g., J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THEFEUDAL LAW 30-55 (1967).

(21.) See, e.g., JOHN RAWLS, POLITICAL LIBERALISM 144-53 (1993).For the leading treatment of a kindred idea in the legal literature, seeCASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 35-61 (1996).

(22.) Letter of Sept. 6, 1789, supra note 3, at 396.

(23.) Id.

(24.) See, e.g., JERRY L. MASHAW, GREED, CHAOS AND GOVERNANCE:USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 81-105 (1997); William N.Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80GEO. L.J. 523 (1992).

(25.) OLIVER WENDELL HOLMES, Learning and Science, Speech at aDinner of the Harvard Law School Association in Honor of Professor C.C.Langdell (June 25, 1895), in SPEECHES 67, 68 (1934).

(26.) This claim is defended in David A. Strauss, Common LawConstitutional Interpretation, 63 U. CHI. L. REV. 877 (1996)[hereinafter Strauss, Constitutional Interpretation], David A. Strauss,Freedom of Speech and the Common-Law Constitution, in ETERNALLYVIGILANT: FREE SPEECH IN THE MODERN ERA 32 (Lee C. Bollinger &Geoffrey R. Stone eds., 2002) [hereinafter Strauss, Freedom of Speech],and David A. Strauss, The Common Law Genius of the Warren Court (Sept.22, 2002) (unpublished manuscript, on file with author). On therelationship between the common-law-like development of constitutionallaw and textual constitutional amendments, see David A. Strauss, TheIrrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457 (2001).

(27.) 376 U.S. 254 (1964).

(28.) For an elaboration and defense of the claims made in thisparagraph, see Strauss, Freedom of Speech, supra note 26.

(29.) See, e.g., Alden v. Maine, 527 U.S. 706, 713 (1999) (Kennedy,J., joined by Rehnquist, C.J., and O'Connor, Scalia, and Thomas,JJ.); Printz v. United States, 521 U.S. 898, 905 (1997) (Scalia, J.);Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996) (Rehnquist, C.J.,joined by O'Connor, Scalia, Kennedy, and Thomas, JJ.).

(30.) See, e.g., PAINE, Rights of Man, supra note 11, at 12-15,86-92.

(31.) For a discussion, citing sources, see Strauss, ConstitutionalInterpretation, supra note 26, at 891-97 & n.41.

(32.) See, e.g., 1 ACKERMAN, supra note 18, at 17-18. The term maybe a little misleading because there is much else going on in Burke.Passages in his writing certainly endorse a belief in intergenerationalobligations. In addition, others before and after Burke articulated thesame ideas. See infra note 33. For a comprehensive effort to develop anapproach to constitutional interpretation that is Burkean in this sense,see Emest Young, Rediscovering Conservatism: Burkean Political Theoryand Constitutional Interpretation, 72 N.C.L. REV. 619 (1994). See alsoid. at 688-97.

(33.) The notion of bounded rationality originates in Herbert A.Simon, A Behavioral Model of Rational Choice, 69 Q.J. ECON. 99, 99-101(1955). See generally HERBERT A. SIMON, MODELS OF MAN: SOCIAL ANDRATIONAL (1957). For more recent treatments, see generally BOUNDEDRATIONALITY: THE ADAPTIVE TOOLBOX (Gerg Gigerenzer & Robert Selteneds., 2000).

For antecedents of Burke, in the common law tradition, whoemphasized these notions, see, for example, MATTHEW HALE, REFLECTIONS BYTHE LRD. CHEIFE JUSTICE HALE ON MR. HOBBES HIS DIALOGUE OF THE LAWE14-15, reprinted in 5 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 500,504 (2d ed. 1937); and Calvin's Case, 77 Eng. Rep. 377, 381 (K.B.1608) (Coke, C.J.). See generally Young, supra note 32, at 642-56.

(34.) Letter of July 12, 1816, supra note 8, at 1401.

(35.) For other conventionalist arguments for legal obligation, seesources cited supra note 19.

(36.) See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406(1932) (Brandeis, J., dissenting) ("[I]n most matters it is moreimportant that the applicable rule of law be settled than that it besettled right.").

(37.) In the traditional statement of the "battle of thesexes" game, A wants to go to the ballet, and B wants to go to aboxing match, but each would prefer to sacrifice his or her preferencein order to be with the other. The game apparently originated in R.DUNCAN LUCE & HOWARD RAIFFA, GAMES AND DECISIONS 90-94 (1957).

(38.) For example, see the argument in DAVID M. KREPS, GAME THEORYAND ECONOMIC MODELLING 101-02, 143-44 (1990).

(39.) For this kind of use of the "battle of the sexes"game, see JEREMY WALDRON, LAW AND DISAGREEMENT 103-04 (1999); andStrauss, Constitutional Interpretation, supra note 26, at 910-11.

(40.) See, e.g., PETER STEIN, ROMAN LAW IN EUROPEAN HISTORY 61-63,71-101 (1999).

(41.) See SUPPLEMENT TO MAX FARRAND'S THE RECORDS OF THEFEDERAL CONVENTION OF 1787, at 183 (James H. Hutson ed., 1987).

(42.) See, e.g., LOUIS MICHAEL SEIDMAN, "GREAT ANDEXTRAORDINARY OCCASIONS": DEVELOPING GUIDELINES FOR CONSTITUTIONALCHANGE 9-25 (1999).

(43.) This identifies a difference between stare decisis and commonlaw constitutionalism. Following recent precedents on specific issues isconventionalist. The Burkean or bounded rationality justifications arelimited to longer-standing principles. On these points, see generallyYoung, supra note 32.

(44.) See, e.g., GERALD J. POSTEMA, BENTHAM AND THE COMMON LAWTRADITION 110-43 (1986).

(45.) For a discussion of the usefulness of such comparisons, seeVICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW144-89 (1999).

(46.) Frank H. Easterbrook, The State of Madison's Vision ofthe State: A Public Choice Perspective, 107 HARV. L. REV. 1328, 1340(1994) (lamenting this tendency).

(47.) In particular, see Peter L. Strauss, Formal and FunctionalApproaches to Separation-of-Powers Questions--a Foolish Inconsistency?,72 CORNELL L. REV. 488 (1987); and Rebecca L. Brown, Separated Powersand Ordered Liberty, 139 U. PA. L. REV. 1513 (1991).

(48.) 343 U.S. 579 (1952).

(49.) 418 U.S. 683 (1974).

(50.) 453 U.S. 654 (1981).

(51.) See 343 U.S. at 634 (Jackson, J., concurring).

(52.) See Nixon v. Fitzgerald, 457 U.S. 731 (1982); cf. U.S. CONST.art. I, [section] 6 (providing an explicit immunity to senators andrepresentatives).

(53.) See Morrison v. Olson, 487 U.S. 654, 693 (1988).

(54.) See Mistretta v. United States, 488 U.S. 361, 381 (1989)(quoting Justice Jackson's Youngstown Sheet & Tube opinion, andadopting a "pragmatic, flexible view of differentiated governmentalpower").

(55.) 462 U.S. 919 (1983).

(56.) Id. at 945.

(57.) Id. at 944.

(58.) Justice White's dissent in Chadha asserted that thedecision was "of surpassing importance," although he may havemeant only that it invalidated a large number of legislative vetoprovisions, not that those provisions were themselves of greatimportance. See id. at 967 (White, J., dissenting). At least onecommentator has taken the position that the approach adopted in Chadha,if generalized, would significantly affect the structure of theConstitution. Victoria Nourse, Toward a New Anatomy of ConstitutionalStructure (Nov. 12, 2002) (unpublished manuscript, on file with author).Eskridge and Ferejohn make a parallel argument, but note that Chadha isan outlier: "The Court's results and reasoning in otherconstitutional cases suggest that the Court itself has not internalizedits Chadha understanding of Article I, Section 7...." Eskridge& Ferejohn, supra note 24, at 558.

(59.) See, e.g., E. Donald Elliott, INS v. Chadha: TheAdministrative Constitution, the Constitution, and the Legislative Veto,1983 SUP. CT. REV. 125, 151 ("It is certainly true that Congressseldom actually invokes the legislative veto."). Elliott does go onto assert that the infrequent use of the veto does not establish itsunimportance. Id. at 152.

(60.) See Harold H. Bruff & Ernest Gellhorn, CongressionalControl of Administrative Regulation: A Study of Legislative Vetoes, 90HARV. L. REV. 1369, 1420-23 (1977); Elliott, supra note 59, at 156-57;Frederick M. Kaiser, Congressional Action To Overturn Agency Rules:Alternatives to the "Legislative Veto," 32 ADMIN. L. REV. 667(1980). See generally David A. Martin, The Legislative Veto and theResponsible Exercise of Congressional Power, 68 U. VA. L. REV. 253,288-90 (1982); Antonin Scalia, The Legislative Veto: A False Remedy forSystem Overload, REGULATION, Nov.-Dec. 1979, at 19, 24.

(61.) See, e.g., Freytag v. Comm'r, 501 U.S. 868 (1991);Bowsher v. Synar, 478 U.S. 714 (1986); Buckley v. Valeo, 424 U.S. 1(1976).

(62.) U.S. CONST. art. V.

(63.) Even so, the conventionalist justification has its limits; intimes of the greatest stress, such as Reconstruction, this provision wasarguably disregarded. For a discussion, see John Harrison, TheLawfulness of the Reconstruction Amendments, 68 U. CHI. L. REV. 375,385-87 (2001).

(64.) U.S. CONST. amend. VI.

(65.) See Bute v. Illinois, 333 U.S. 640, 660-66 (1948); WILLIAM M.BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 8-33 (1955).

(66.) 372 U.S. 335 (1963).

(67.) For an argument against such an approach to theconstitutional text (characterized as "nonoriginalisttextualism"), see Michael J. Perry, The Legitimacy of ParticularConceptions of Constitutional Interpretation, 77 VA. L. REV. 669, 689-91(1991). See also Steven D. Smith, Law Without Mind, 88 MICH. L. REV.104, 114-15 (1989) (arguing against such an approach to statutoryinterpretation). But see T. Alexander Aleinikoff, Updating StatutoryInterpretation, 87 MICH. L. REV. 20, 59-60 (1988) (defending, althoughnot on conventionalist grounds, such an approach to statutoryinterpretation). For a sustained account of the Foundinggeneration's view of how meaning should be assigned to the text--anaccount generally inconsistent with using present-day meanings--seeCaleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L.REV. 519 (2003).

(68.) The series of decisions is recounted in GEOFFREY R. STONE ETAL., CONSTITUTIONAL LAW 702-09 (4th ed. 2001).

(69.) For example, in Adamson v. California, 332 U.S. 46 (1947),compare the concurring opinion of Justice Frankfurter, id. at 59, withthe dissenting opinion of Justice Black, id. at 68. See generally JAMESF. SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVILLIBERTIES IN MODERN AMERICA 130 (1989).

(70.) The received view is reflected in what was perhaps theleading work of constitutional theory of the time, ALEXANDER M. BICKEL,THE LEAST DANGEROUS BRANCH 101-02 (2d ed. 1986), in which the authorobserved that the "weight of opinion among disinterestedobservers" is that the Framers of the Fourteenth Amendment did notintend incorporation. Charles Fairman, Does the Fourteenth AmendmentIncorporate the Bill of Rights? The Original Understanding, 2 STAN. L.REV. 5 (1949), reprinted in CHARLES FAIRMAN & STANLEY MORRISON, THEFOURTEENTH AMENDMENT AND THE BILL OF RIGHTS: THE INCORPORATION THEORY 85(1970) was widely thought to have established that incorporation wasinconsistent with the original understandings. See also FALLON, supranote 2, at 144 n.22; id. at 15 ("It is at best questionable whetherthe framers and ratifiers of any constitutional provision understoodthemselves as having made the Bill of Rights applicable against thestates....").

(71.) AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION ANDRECONSTRUCTION (1998); MlCHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THEFOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986).

David A. Strauss, Harry N. Wyatt Professor of Law, University ofChicago. For comments on various earlier versions of this Essay I amgrateful to Akhil Amar, Michael Dorf, Thomas Grey, Don Herzog, EricPosner, Christopher Schroeder, Nikhil Shanbhag, Cass Sunstein, ErnestYoung, and participants in workshops at Yale, Columbia, the Universityof Pennsylvania, Duke, the University of Michigan, and Georgetown. Ialso thank Crista Leahy and Eleanor Arnold for expert researchassistance, and the Jerome F. Kutak Faculty Fund, the Raymond and NancyGoodman Feldman Fund, and the Lee and Brena Freeman Faculty ResearchFund at the University of Chicago Law School for financial support.