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70 S. Cal. L. Rev. 381 (1996-1997)
Antifidelity

handle is hein.journals/scal70 and id is 395 raw text is: ARTICLES ANTIFIDELITY MICHAEL J. KLARMAN* Constitutional scholars have devoted a great deal of attention in recent years to the question of how best to show fidelity to the Consti- tution.' A more basic issue has elicited relatively little interest: Does the Constitution deserve our fidelity at all? The answer to that more fundamental question seems clear, if counterintuitive: Of course not. Why would one think, presumptively, that Framers who lived two hundred years ago, inhabited a radically different world, and pos- sessed radically different ideas would have anything useful to say about how we should govern ourselves today? This is the famous dead-hand problem of constitutionalism: Why should today's genera- tion be ruled from the grave?2 Among constitutional originalists, who claim the purest form of fidelity to the Constitution, few even bother to confront this difficulty. Most originalists simply assert that since the Constitution is law, of course it must bind.3 Yet this argument is entirely circular; the ques- tion is whether we ought to treat the Constitution, with its attendant dead-hand difficulty, as binding law. As more thoughtful originalists * Professor of Law, University of Virginia. I am grateful to Barry Cushman, Barry Fried- man, Dan Ortiz, Danny Richman, Fred Schauer, Mike Seidman and Bill Stuntz for helpful com- ments on an earlier draft. 1. See generally Symposium, Fidelity in Constitutional Theory, 66 FORDHAM L. REV. (forthcoming 1997). 2. For discussion of the dead-hand problem of originalist constitutional adjudication, see, e.g., JoHiN HART ELY, DEMOCRACY AND Dis-musT 11 (1980); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204,225 (1980); Mark V. Tushnet, Follow- ing the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 787 (1983). 3. See, e.g., Speech of Edwin Meese III (Nov. 15, 1985), in Tim GREAT DEBATE: INTER- PRETiNG OUR WRrrrEN CONSTrTON 31 (1986); ROBERT H. BORK, THE TEMPTING OF AMERICA: Tim POLITICAL SEDUCTION OF THE LAW (1990); Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REv. 1231, 1250 (1994); Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 384 (1981).

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