Orin Kerr blogged last week about “Rethinking Blogging-as-Scholarship” and how Professor can incorporate blogging to advance their scholarship. This set off a flurry of blog posts from scholars across the interwebs. So I tweeted a while back about liveblogging an article, and I asked Professor Kerr about it:
Orin, do you see any value in using collaborative technologies (a Wiki, or perhaps Google Wave), as an effective means to allow Profs to present their scholarship-in-progress online? I have limited experience with Wave, but it seems to be well suited to show a Law Review article as it develops.
In my experience, the value of watching an article develop while it’s in progress is pretty small. Perhaps it might be of interest for a particularly prominent academic, like a Larry Lessig, who would draw an eager following. But I suspect that no one is interested in how the rest of us write articles.
Well, I’m going to try it anyway, and see how it works.I’m working on a lot of articles. Once in a while, I will post part of a work-in-progress article to these pages, and open it up for comments. These ideas are raw, under-developed, and need work. But this process will force me to stay on track, and hopefully obtain some valuable feedback from the Interwebs. Who knows? Maybe this could catch on. Or Epically fail. I would use Google Wave, but not enough people have access to it. And I’m not sure about a Wiki, so for now, comment thread will suffice.
Alas, my thoughts on The Preamble to Constitution and Grammatical Originalism.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”[1]
Proponents of Redemptive Constitutionalism have “surged through the Preamble’s portal and widened its gate” in order to justify their redemptive vision of the Constitution.”[2] Redemptive Constitutionalists contend that “We the People” consists of the current generation (whenever that may be). Professors Balkin and Siegel write that the “preamble tells us to ‘establish justice, insure domestic tranquility, provide for the common defense [sic], promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”[3] This vision of the Constitution views the Preamble as delegative, or instructive to future generations.
Professors Siegel and Post write, “If courts were to impose the Constitutions meaning in matters about which citizens care deeply, the American people would soon become alienated and estranged. We would no longer be able to recognize the Constitution as ‘ours,’ as the expression of ‘We the People.’ The legitimacy of the Constitution depends on this relation to recognition.”[4] But as comforting as the mental image is, is the Constitution in fact ours? The text of the preamble to the Constitution answers two important interpretive questions; who and when. By focusing on these questions, Redemptive Constitutionalist’s reliance on the Preamble becomes textually, and grammatically, tenuous.
First The Preamble tells us who the Constitution represents. The answer? “We the People.” But who exactly, are “We the People”; The generation of 1789, or the present generation? The text of the Preamble reveals that the Framers were fully aware of who would be affected by the Constitution, and were able to differentiate between the present, “ourselves” and the future generations, “our Posterity.” “We the people” refers to those in 1789, and not those in 2010. “Our Posterity” can and should include today’s generation. But, these are different terms. The Preamble does not instruct future generations. It declares to the present generation (those in 1789) what the Constitution seeks to accomplish. Contrary to the assertions of the Redemptive Constitutionalists,[5] the Preamble does not tell us, anything. Rather it speaks to those that ratified the Document.
Redemptive Constitutionalists further view the preamble as an invitation to an open-ended, seemingly perpetual process of change.[6] But the Preamble also answers a second interpretive question; when was the Constitution completed? The text, grammar, and tense of the Constitution provide the answer. The Framers used the present tense, and not the future tense. “We the People . . . do ordain and establish.” Do, a present tense verb, reflects that the doing was done in 1789. Moreso, the doing being done in 1789 aimed to “secure the Blessing of Liberty to ourselves and our Posterity.” The Framers considered the prospects of how the Constitution would reflect future generations, as reflected by this forward-looking clause. But rather than extending an open-ended invitation to their descendants to “ordain and establish,” the Framers decided to “do” it for them. This was a completed act, and not a delegation to the future. Thus the Preamble is Declarative in the present tense, and not instructive or delegative in the future tense. The founders already “ordain[ed] and establish[ed].” As Professor Amar wrote, “[t]hus the Founders’ ‘Constitution’ was not merely a text but a deed- a constituting. We the People do ordain. In the late 1780s, this was the most democratic deed this world had ever seen.”[7] Thus, the deed was done in 1789. Contrary to the assertions of Professors Balkin and Siegel, the task was completed.
[1] Preamble to the Constitution.
[2] See Amar Biography 18
[3] C2020 2 (“The people of the United States, through their Constitution, are engaged in a long-term project, one that spans many generations. It is the project of creating a more ‘perfect union,’ striving as the Constitution’s preamble tells us to ‘establish justice, insure domestic tranquility, provide for the common defense [sic], promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”) (emphasis added); See also, C2020 3 (“Each generation builds on the best of the past and strives, as the Preamble instructs us, to create a better future for our posterity.”)(emphasis added)
[4] C2020 27 (Post & Siegel)
[5] C2020 3 (“Each generation builds on the best of the past and strives, as the Preamble instructs us, to create a better future for our posterity.”)(emphasis added)
[6] C2020 2 (“This task was not completed in 1789, when the document was ratified; it is not completed today. It belongs to each generation to do its part.”).
[7] Amar Biography 5