Liberty Law Forum on originalism and liberty [updated with a rejoinder to Ed Whelan]

|The Volokh Conspiracy |

The Liberty Law Forum has now posted all of the contributions to a symposium that began with my essay on "How Constitutional Originalism Promotes Liberty." I argued that originalism is likely to promote liberty more effectively than other, realistically feasible, approaches to constitutional interpretation. The symposium includes critiques of my argument by well-known conservative legal theorists Hadley Arkes and Peter Lawler, and by Ed Whelan of the Ethics and Public Policy Center, a prominent conservative commentator on constitutional law. I replied to the commentators here.

Much of the debate between the commentators and myself focuses less on the central point of my initial essay, than on some important issues related to it—most notably whether originalism and its rivals should be judged based on their consequences, or whether originalism can be justified based on considerations independent of its real-world effects. I would like to thank the commentators for their insightful contributions, and Richard Reinsch of the Liberty Law Forum for organizing this symposium.

My initial essay also stimulated a thoughtful critique by originalist legal scholar Michael Ramsey, which I responded to here.

UPDATE: Ed Whelan has posted a rejoinder to my reply to his earlier commentary. His main point in the rejoinder is to criticize me for endorsing originalism for "opportunistic" reasons rather than because of "its essential rightness of originalism as a method of interpretation." I would say that my support for originalism is instrumental, rather than opportunistic. In my view, originalism has great value. But it is not valuable for its own sake, nor is it inherently superior to all other possible methods of interpretation in all cases. Rather, the value of originalism lies in its utility for maintaining a well-functioning legal system that secures ends that are intrinsically valuable—including liberty.

It isn't just originalism whose utility is instrumental, but that of law more generally. Law does not exist for its own sake, but to promote freedom, justice, happiness, and other important values. Recognition of this reality is one factor that has led a wide range of scholars to defend originalism on instrumental grounds, including John McGinnis and Michael Rappaport, Akhil Amar, and Michael Ramsey (in an exchange occasioned by my initial essay in this symposium, where he ultimately agreed that the rule of law is an instrumenal rather than intrinsic justification for originalism).

Even the text of the Constitution itself recognizes that its meaning is intended to serve instrumental purposes, rather than be valued for its own sake. As the Preamble of the Constitution puts it, the purpose of the document is "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." That is as good a standard as any for evaluating methods of constitutional interpretation.