We’re back to originalism class, where we talked yesterday about theoretical justifications for originalism. The topic is set up well by Eric’s recent post, “Originalism means not always getting what you want.” I’m relieved, if a little surprised, to see Eric imply that his own interpretive methodology (which I’m still trying to fully understand) also provides “no guarantee that the interpreter will like the answers.” Eric then says this:
Originalism is itself a choice. Proponents of originalism must make arguments on behalf. And this creates a paradoxical problem for its defenders like Will, who says “if you are intellectually honest, signing on to originalism is signing on to a theory of authority where you can’t be guaranteed in advance that you’ll like what you find.” He’s right that originalism won’t get off the ground if it just advances the political preferences of a small group of people. As I said, the same is true for other methods. The question is what does it get us beyond that? And to answer that question, he must show that it is superior to other methods, presumably by advancing institutional values that everyone or nearly everyone shares. In this respect, originalism is no different from other methods.
So of course it seems right to me that originalism is chosen, not simply inherited, but I am not so sure that Eric and I agree on the correct criteria for choosing an interpretive theory. Eric suggests that the choice should be made on a value-driven basis.
Originalism is sometimes defended that way. Originalism is good, the argument goes, because it constrains judges. OR, originalism is good because it advances a certain form of democratic decisionmaking. OR, originalism is good because, at least under our Constitution, it is faithful to a supermajoritarian process that is systematically likely to produce good results.
I think there is substantial merit to these arguments. But I don’t think they are the only basis on which to choose an interpretive theory and I’m not sure they are the best ones. A different way to justify originalism is conceptual.
The conceptual argument goes: The Constitution is a text, and interpreting that text means trying to discover the meaning those words have in the relevant interpretive community that spoke and received them. Everybody knows this when it comes to the “easy cases,” (two senators, regular elections, federal law trumps state law) and we shouldn’t let the hard cases confuse us. [On this issue we read Gary Lawson's On Reading Recipes ... And Constitutions and Larry Alexander's Telepathic Law. So let me say: On Reading Recipes ... was one of the greatest revelations of my 1L year of law school. If the Posner-Baude debates inspire you to read one actual article, make it that one.]
One can criticize these linguistic arguments as incomplete. It’s possible that the Constitutional text is not the law, in which case Lawson and Alexander are just reading the wrong thing. (Sounds crazy, but some law professors seem to think this if you press them.) Alternatively, sometimes the legal system has idiosyncratic rules of interpretation, so it’s possible that the American legal system requires us to treat the constitutional text idiosyncratically. That brings up a third class of justifications for originalism, namely that originalism is either permitted or required by our legal culture.
In my view, this is where the important work still needs to be done. (Here are two posts (1, 2) by Mike Rappaport discussing the problem.) One important entrant, which we read in class, is a draft paper by Steve Sachs (not yet online) that suggests that we have a widespread legal commitment to legal continuity with the founding, and that such continuity is a form of originalism. I think there is more to say, but fundamentally, I think it is true that there is something about contemporary American legal culture that makes originalism a part of our law of constitutional interpretation, even if it is not the way to interpret the Connecticut Constitution or the French Constitution.
So it is totally true and fair to say that the best defense of originalism has not yet been written, even after all these years. But the important point, I think, is to realize that there are different kinds of reasons one can have for believing (or rejecting) originalism. Originalism does not have to be justified entirely on the basis of its consequences. Consequentialist arguments might be part of an overlapping set of reasons for originalism, but they aren’t the whole story. This can be frustrating to originalisms critics, who sometimes feel as if originalists are playing a shell game; but I think it’s really just that there are a lot of good arguments in favor of originalism that reinforce one another.
[Eric also has a post about the issue of "safety valves," which I think is interesting but even more academic, and potentially confusing, so I will cover it separately.]