The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Legal scholar Michael Ramsey has an interesting post responding to my Liberty Law Forum essay arguing that originalism promotes liberty more effectively than other, realistically feasible, modes of constitutional interpretation.
Some of Ramsey's post builds on Ed Whelan's response to my essay, which I will reply to later, at the Liberty Law Forum website itself (while also addressing the other two commentators on my earlier essay, Hadley Arkes and Peter Lawler). But Ramsey's main point is at least partly distinct from Whelan's, so I will address it here.
He argues that the case for originalism should not be based on "contingent" consequential factors. After all, even if originalism does promote liberty in some cases, it might not do so in others. It should instead be justified based on considerations "independent of particular results." The principal such justification, in Ramsey's view, is "the rule of law and the benefits that flow from it."
The rule of law is a slippery term with a number of different possible meanings. But unless it is defined circularly as the enforcement of the original meaning of a law regardless of content, the relationship between originalism and the rule of law is no less contingent than the connection between originalism and liberty.
For example, the rule of law is often defined in contrast to "the rule of men." Whereas the former is based on general, impersonal rules, the latter is subject to the vagaries of the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. The original meaning of some parts of the Constitution could potentially give wide-ranging discretion to government officials, that gives them broad scope to apply various personal biases.
Another common formulation of the rule of law is that it requires the enforcement of clear, predictable rules, as opposed to relatively vague standards (this viewpoint is often associated with Justice Antonin Scalia). Here too, whether originalism promotes the rule of law better than other modes of interpretation turns out to be contingent. In some cases, the original meaning of a particular constitutional provision may require the application of a relatively vague standard rather than a clear rule.
The rule of law might also be defined in terms of stability over time. A rule must have the same interpretation at Time B as at Time A. Here too, the connection between this principle and originalism turns out to be contingent. The original meaning might sometimes allow officials to change the application of various rules over time. For example, administrative agencies often change their interpretations of particular laws when the executive branch shifts from Republican control to Democratic, or vice versa. A constitution whose original meaning permits such shifts is one that is at least partly inimical to the rule of law defined in terms of stability. And nothing in the inherent nature of originalism rules out such a possibility. I do not claim that the original meaning of the actual US Constitution necessarily authorizes such changes. But if it does not, that is a contingent fact about the US Constitution, not a necessary attribute of the original meaning of constitutions more generally.
Some theories of the rule of law incorporate constraints of substantive justice, as well as procedural restrictions. For example, Lon Fuller famously argued that the rules of the Nazi legal system (and other deeply unjust systems) cannot be considered genuine "law." On this formulation, the relationship between the rule of law and originalism is also obviously contingent. Enforcing the original meaning of a deeply unjust provision of the Constitution (e.g.—the Fugitive Slave Clause) might very well undermine justice rather than enhance it.
Even a purely procedural approach to the rule of law still leads to a contingent rather than a necessary relationship between it and originalism. For example, one might argue that the rule of law requires only the enforcement of whatever rules are produced by a democratic process. But, as many have pointed out, the original meaning of the Constitution's most important provisions was produced by a process that would not be considered democratic by modern standards. Nearly all women and most African-Americans were excluded from participation, for example.
Obviously, what Ramsey refers to as "the benefits that flow" from the rule of law are even more contingently connected to originalism than the rule of law itself is. Even in cases where originalism effectively promotes the rule of law, it might not always produce the benefits that Ramsey has in mind. In some situations, contingent circumstances might sever, or at least weaken, the connection between the rule of law and those resulting benefits.
I agree with Ramsey that the rule of law (at least in some of its possible formulations) is an important issue to consider in assessing rival modes of constitutional interpretation. As I stressed in my original essay, I do not claim that liberty is the only criterion we should consider in such an assessment. But the relationship between the rule of law and originalism is is just as contingent as the connection between originalism and other values. In my view, given the structure and history of the US constitution, originalist constitutional interpretation is more likely to effectively promote the rule of law than realistically feasible versions of living constitutionalism. But I readily admit that that conclusion has to be justified on the basis of logic and evidence. It is not inherent in the very nature of originalism itself.
Ramsey also suggests that even if "originalism generally may promote liberty, presumably it doesn't always do so." Therefore, if our goal is to promote liberty, we might want to adopt some other mode of interpretation for those parts of the constitution that "aren't liberty-promoting in their original meaning." This is certainly true, in theory. But the key question is, what other mode of interpretation?
In my original essay, I explained why, at least in the case of the US Constitution, we are unlikely to promote liberty more effectively by adopting one of originalism's realistically feasible alternatives. I think those points apply to the parts of the Constitution Ramsey references, as well as others. I also explain why we are unlikely to achieve that goal by adopting a mode of interpretation that requires judges to try to directly assess which outcome in a given case promotes liberty more effectively. Moreover, adopting widely divergent modes of interpretation for different parts of the Constitution might undermine other important substantive values that a constitution should promote, even if it may enhance liberty.
I sympathize with Ramsey's and others' desire to find a justification for originalism that would apply in all times and places, regardless of contingent circumstances. But the more I consider the issue, the more I doubt that such a noncontingent justification exists—for either originalism or living constitutionalism. And if such a justification does exist, it must be something other than the rule of law.
UPDATE: Another possible way of formulating my point is that while the justification for originalism might well be independent of the results of any one specific case, it cannot be independent of the general systemic results of adhering to originalism overall. And the same goes for possible justifications for living constitutionalism.
UPDATE #2: I have made a few minor stylistics changes to this post.
UPDATE #3: Michael Ramsey responds to this post here. Interestingly, he writes that he "pretty much agree[s]" with what I say above. He acknowledges that the relationship between the rule of law and originalism is a contingent one, but argues that the rule of law is still "not a bad argument for originalism" because originalism (at least in the context of the US Constitution) is likely to promote the rule of law more effectively than living constitutionalism does.
I largely agree with that. However, I would note that if it is permissible to use one type of contingent consequentialist argument to evaluate competing theories of constitutional interpretation (the rule of law), it should also be permissible to consider other relevant consequences, as well, including liberty. And, sometimes, we might be willing to sacrifice some elements of the rule of law in order to make large gains in achieving other values. We can sidestep such tradeoffs, of course, if the "rule of law" is defined so broadly that it ends up encompassing all other important values that a legal system might seek to promote. But such a broad definition isn't really analytically useful, and I don't think it is what Ramsey has in mind.