Originalism in all its various forms has been a pretense for defending one’s preferred legal conclusions.
Today, originalism is all the rage, embraced by conservatives and progressives alike. It is, as legal scholar Eric Segall argues in his new book Originalism as Faith , a shared judicial faith, interpreted in different and competing ways (as are, of course, all religions), but shared nonetheless. Justice Elena Kagan, during the second day of her confirmation hearing in 2010, famously remarked that “we are all originalists.” The struggle to define originalism is intimately related to the cultural identity crisis that has long afflicted the libertarian movement, for it underscores the differences between conservatives and libertarians.
Originalism might translate to a robust, arguably activist standard of judicial review, called by its proponents “judicial engagement,” premised on the notion—itself entirely exterior to the “original public meaning” of the Constitution’s words, we should add—that the document’s “spirit” is identifiable as, roughly, libertarianism. This enormously controversial premise, precariously balanced on strange blend of tendentious legal, historical, and empirical claims, 1 is ironically just the sort of opportunistic theory the libertarian originalists say they oppose, the kind of theory that allows a judge to pursue his “own extraconstitutional preferences.” Then again, to many or most of its historical advocates, originalism means approximately the opposite of this, standing for the proposition that “judicial engagement” of the variety championed by the New Originalists amounts to imperiously deciding what the government’s policy ought to be—that is, to legislating from the bench. Of the Warren Court, for example, Judge Robert Bork wrote that while previous “Courts had certainly made policy that was not theirs to make,” the Warren Court “stands first and alone as a legislator of policy.” Today’s conservatives (and many originalists) continue to trot out the decisions of the Warren Court for special vitriol when the subject of Supreme Court nominees is again occupying headlines. For all libertarians’ contorted assurances that originalism entails essentially libertarian legal conclusions, 2 their conservative bedfellows seem to know better, to understand that, as a matter of practice, originalism “stands athwart history, yelling Stop,” to borrow William F. Buckley’s infamous words.
For example, in the New York Post, conservative writer Sohrab Ahmari argues that none of liberals’ “major cultural victories of the past half‐century” were “won at the ballot box, going back to the Supreme Court’s 1965 Griswold decision, which recognized a constitutional right to contraceptives. From abortion to gay marriage, plus a host of less titillating issues, modern liberalism has lived by the Court.” Pieces like Ahmari’s are important and enlightening insofar as they give away the game: conservatives really do want to overturn the Warren‐era right to privacy decisions, including, of course, Roe v. Wade , because they regard these decisions as “democratically illegitimate” judicial usurpations by liberal judges. They believe that judges like Brett Kavanaugh are the pathway to correcting these judicial overreaches.
Nothing of this is particularly surprising to anyone who has followed American conservatism, which pretends to care about limiting government even as it attacks the very cases that protect from government the most personal and intimate aspects of one’s life. What is, perhaps, surprising is the decision of self‐styled libertarians to cozy up to conservatives and, yes, conservatives’ originalist judicial appointees. Libertarian legal scholars have, for some reason, allied with a conservative legal movement whose entire history has been a round rejection of the libertarian vision of robust, individual rights‐protecting judicial engagement as illegitimate liberal activism—a history that consistently scorns substantive due process as, in Justice Scalia’s words, an “oxymoron” and a “contradiction in terms.” The content of the mandate carried by judges—the question of what exactly judges are supposed to do—is at the center of the debate about originalism. And it’s not necessarily a partisan political debate, as, again, there are both conservatives and progressives who have adopted originalism, who see it as protective of (or at least consistent with) their preferred political programs. It is important to point this out, the near‐perfect alignment we observe between one’s politics and his understanding of the conclusions demanded by originalism. Ultimately, originalism is always a normative project, a philosophical one, and must always point to, or implicate, or rest upon exogenous factors—factors other than the text of the document itself. Though they often will if pressed, admitting this is uncomfortable for originalists insofar as they prefer to see originalism as a straightforward application of a fixed legal rule. New Originalism purports humbly that it merely “seeks to discover an empirical fact about the world,” the idea being that, in principle, the original public meaning of the Constitution’s words is discoverable as a single coherent legal message.
Originalists have long argued that the normative superiority of their position is bound up in the fact that it is one position, a coherent, unified theory that tells us how to interpret and apply the Constitution. They contend that living constitutionalism, on the other hand, is not one view, but hundreds or thousands of them, incapable, for that reason, of serving as a guide. 3 For example, according to the late Justice Antonin Scalia, “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution.”
The picture painted by originalists, that their doctrine is “a consistent, coherent theory that has stood the test of time” 4 against a host of unprincipled attempts to speciously shoehorn a certain set of policy commitments into the Constitution, is extremely self‐serving and fairly obviously at odds with the facts. Originalists, no less than non‐originalists, see their preferred theory playing out in several competing (and indeed incompatible) ways. At the very least, then, bringing clarity to the discussion would require that we follow law professors Thomas B. Colby and Peter J. Smith in acknowledging that originalism is a “disparate collection” of “theories that share little more than a misleading reliance on a common label.” Everyone, originalists and non‐originalists alike, seems to be rather shamelessly reverse‐engineering a constitutional theory that will lead to some desired result, rather than merely calling balls and strikes, as it were. New Originalism is especially perplexing in light of the normative justifications of Bork‐style Original Originalism. Where Justice Scalia rejected “the modern living Constitution” for the “wide discretion” it affords judges, the New Originalists have embraced bold judicial activism, euphemistically restyled “judicial engagement,” to a degree that would make even most living constitutionalists blush. Whatever their approach is called, libertarian New Originalists would have judges strike down reels of duly enacted statutes as violative of individual rights nowhere to be found in the Constitution.
Among the most conspicuous hints at originalism’s incoherence as a project is this, the stark divide among its practitioners as to the question of its practical meaning. While originalists have, as discussed above, long associated their doctrine with a conservative judicial deference to the decisions and actions of the political branches of government, today’s New Originalists have argued that, as a practical matter, originalism entails “judicial engagement.” And if conservative jurists have been the most prominent originalists on the bench, there is an ever‐growing movement among progressives in the legal academy to claim originalism as their own. Everyone sees the cover of originalism as a way to legitimate his project. It’s not so much, therefore, that originalism is a bad position, but instead that it’s a hollow, meaningless one, to which its adherents point after the fact as a justification for their real, underlying beliefs—that is, their normative politics. Ultimately, one’s describing himself as an originalist is a form of intellectual vanity, a way of taking cover: it enables the judge to say, I am following the law, its mere servant, not engaged in anything so dirty and contentious as politics. As Chief Justice Roberts stated, with a priest’s pious humility, at his confirmation hearing in 2005, “I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” Surely there are cases in which the justices of the Supreme Court are quite like the plate umpire in a baseball game; indeed, in so many of the Court’s less sensational cases—cases, perhaps, that do not so clearly implicate their political values—its nine members decide unanimously (or close), drawn to the same conclusion about how to fairly and correctly apply the legal rules at issue. 5 But we shouldn’t pretend that this way of applying the law, neutral, empty of value judgments, detached, is even possible when human beings are attempting to give meaning and application to general phrases like “equal protection of the laws” and “due process of law.” There are, ultimately, several plausible readings of many of the Constitution’s vague or ambiguous provisions. Originalists ask us to accept the facially ridiculous notion that there a single correct answer that we can find and neatly apply.
Even setting aside controversial constitutional questions, this way of seeing the judge’s role, as a sphere only of application, in which the judge is narrowly limited to mechanically finding and applying the law, is fundamentally incorrect; that is, it is both impossible to achieve this ideal as a practical matter, and were it possible, it would be undesirable. 6 As Richard Posner observed in Overcoming Law , “for reasons rooted in the nature of law and legal institutions, in the limitations of human knowledge, and in the character of a political system,” judges are constantly being asked to legislate, and there’s nothing inherently wrong with this; indeed, this manifestly true proposition is particularly central to common law legal systems like the one in the United States, in which judicial opinions are a key source of law. Judges invariably hear the hard cases that test the applications of legal standards, reduced to words, to messy, real‐world circumstances, unforeseen by drafters of constitutions and legislation. The judge in such a position, argues Posner, is bound to render “a creative decision, involving discretion [and] the weighing of consequences” (emphasis added). Originalists argue that a judge who aims at particular consequences has overstepped his mandate or abused his discretion. But a careful analysis of consequences is inherent in judging as a matter of course, for it is often only by considering consequences that we could know whether “equal protection of the laws,” to take one example, has been afforded.
Originalist law professor William Baude seems to recognize, at least tacitly, that many of the most common arguments for originalism are hopelessly circular and weak. His claim that originalism simply is the law is a somewhat simpler and admittedly more compelling move, one that dispenses with “conceptual [and] normative justifications” for originalism in favor of the claim that we have, as a matter of fact, adopted the convention of originalism in “our interpretation of our Constitution” (emphasis in original). Philosophically speaking, this is a descriptive claim: whether originalism ought to be the case or not, it is the case—and is the law—and is thus entitled to a certain amount of deference, provided “we agree that government officials should obey the law.” As Segall points out, though, Baude’s “inclusive originalism” thus amounts to something “virtually indistinguishable from the non‐originalist, ‘living constitution’ approach that supported the liberal Warren Court decisions that the Original Originalists criticized.”
In the final analysis, justice is, as Ronald Dworkin famously argues in Law’s Empire , “a matter of outcomes,” and the law serves justice—or, perhaps more precisely, it ought to. Disconnecting the law and the judge from political theory and empirical social science, from considerations of justice and outcomes, makes of the law a dead, empty husk. Even the jurists who say that they believe the law to be just that (Scalia, for example 7 ) do not act as if they believe it; they rather fill the husk with their own extra‐textual opinions and values. As we have noted, the idea that the Constitution’s text ought to be read in the light of certain normative principles (which, for many New Originalists, happen to be roughly consistent with modern libertarian political philosophy) is a supplementary gloss that comes from without. And for all of the New Originalists’ talk of faith to the original public meaning of the words themselves, it is this gloss, this philosophy, decidedly exterior to the words themselves, that imparts the substantive aspects of their view of the law.
Certainly libertarians might find accepting this position—the pleasant idea that properly interpreted the Constitution just does protect our unique and controversial view of individual rights—to be quite gratifying. Perhaps we should. But we shouldn’t, for that reason, pretend that we’re not simply working backward from a set of normative commitments. Instead of all this transparent dissembling and motivated reasoning, we should be honest about the role that ethical values play in our understandings and interpretations of the law. The obvious and, importantly, necessary connection between the law and the ongoing normative project of ethics is, after all, nothing to be ashamed of. The law’s authority, if it has any, is of a distinctly moral character. Stripped of that character, the law is worthless—worse than worthless, in fact, a positive impediment to justice and social progress. And law has been just that for most of its history, a mere memorialization of might‐makes‐right, the tool some people use to dominate and control other people. Treating the law as a vital—yes, ongoing and living—philosophical project, rather than as the mere application of dead words, will be the law’s salvation form its dark history, if indeed it is salvageable.
1. I have considered those claims and Randy Barnett’s version of originalism in more depth here.
2. Again, this is interesting in itself, because libertarian originalists will then turn around and swear up and down that they’re not pushing for a political reading of the Constitution. One can be forgiven for being confused.
3. See, for example, Thomas B. Colby and Peter J. Smith, “Living Originalism” in Duke Law Journal, Volume 59, Number 2 (November 2009).