Originalists need not be naive perfectionists

February 2, 2014

I’ve heard quite a bit of skepticism about my remark, earlier this week, that originalists can accept the reality that even originalist judges are likely to be subtly biased in favor of modern values. I was preparing to write a longer post about this point, which I thought was fairly novel and important.

Nothing about originalism requires you to be a naive perfectionist about judges or human nature. (I suppose originalists can be naive perfectionists, but they don’t have to be.) Indeed, being realistic about human nature and judging might cause us to conclude that originalism is important because it provides a counterweight that makes judging, in practice, only partly political, rather than totally political.

But then I discovered that this point wasn’t original at all, and it has already been well put by none other than Justice Antonin Scalia:

Now the main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely. …

Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. And the principal defect of that approach—that historical research is always difficult and sometimes inconclusive—will, unlike nonoriginalism, lead to a more moderate rather than a more extreme result. The inevitable tendency of judges to think that the law is what they would like it to be will, I have no doubt, cause most errors in judicial historiography to be made in the direction of projecting upon the age of 1789 current, modern values—so that as applied, even as applied in the best of faith, originalism will (as the historical record shows) end up as something of a compromise. Perhaps not a bad characteristic for a constitutional theory.

Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989).

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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Kenneth Anderson · February 2, 2014