The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, Cass Sunstein wrote a column criticizing originalism and warning against an overly originalist nominee to the Supreme Court. A key excerpt:
For example, originalism could easily lead to the following conclusions:
1. States can ban the purchase and sale of contraceptives.
2. The federal government can discriminate on the basis of race—for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
3. The federal government can discriminate against women—for example, by banning them from serving in high-level positions in the U.S. government.
4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
6. States can establish Christianity as their official religion.
7. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.
The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions—and originalists have to do real work to explain why they reject them.
Mike Ramsey and Mike Rappaport have both responded, with Ramsey pointing out that "not much work is needed" to explain why most of these consequences will not come to pass.
Mike Rappaport, meanwhile, asks: "Even if Sunstein were right about this, what would that prove?" He argues that various types of nonoriginalism could "easily lead" to these conclusions as well. "In fact, to the extent that nonoriginalism is about pursuing discretion on the part of judges to pursue what a good constitution would be—which is a big part of nonoriginalism—nonoriginalism clearly would allow these results." (There is much more here.)
That provoked an extended response from my sometime co-author Steve Sachs on Twitter, which he has cleaned up so that I could re-post it here.
The "Originalism Causes Bad Things" argument that Sunstein makes has always bothered me. (Like Rappaport, I'll set aside the question whether his seven claims are actually all true of originalism; I think not. Note also that many of the worst things on this list could only happen if democratic majorities vote for them, which seems pretty unlikely at this point.)
My worry is with the form of the originalism-causes-bad-things argument.
Sometimes the law has bad consequences. Is Sunstein denying that? (Is he a natural lawyer in disguise?) Sometimes even our law has bad consequences. That was surely true in 1788. But are those times wholly past? The danger in the originalism-causes-bad-things argument is that it risks being complacent about the moral state of things right now. People who are pro-life might not think our current practices are all that moral; neither might advocates for animals (of whom Sunstein is one), for prisoners, for drone victims, and so on. As Rappaport asks, has the living constitution really done away with every deep injustice that might give rise to similar questions? ("And Justice Breyer shall wipe away all tears from their eyes; … neither shall there be any more pain: for the former things are passed away.")
The danger in suggesting that our law won't produce desperately bad things-and in making the non-production of bad things a criterion for determining our law-is that it might lead us to overlook how bad things really are. H.L.A. Hart criticized the principle "that, at certain limiting points, what is utterly immoral cannot be law or lawful": he worried
that it will serve to cloak the true nature of the problems with which we are faced and will encourage the romantic optimism that all the values we cherish ultimately will fit into a single system, that no one of them has to be sacrificed or compromised to accommodate another.
"All Discord Harmony not understood
All Partial Evil Universal Good"
We could imagine more entries in Sunstein's parade of horribles. "States would be able to allow concentrated feedlots" might be worse for animals than even invalidating the Endangered Species Act; but nominees are never asked ominously about that in their hearings. That's partly because there's no good argument that feedlots are unconstitutional. But criticizing the lawyer telling you that ("you're okay with animals' suffering!") is just killing the messenger. Sometimes legal rules really do take consequences into account. But Robert Bork's America arguments blur the line between legal rules and policy preferences-which is an incredibly important line for lawyers and law professors to uphold!
Sunstein might respond that originalism is a choice: it's a law reform project, one that happens to reform the law in a bad way. But that's why I've argued that originalism isn't law reform, that it's what our law already requires. (And so has Will Baude, among others.) The idea that we face an 'interpretive choice'-a choice of how to interpret our legal texts-assumes that the law itself takes no view on what to do with these texts. That view has been challenged, more than once. Or, to put it another way, paraphrasing an argument by Robert Nozick:
if legal texts fell into judges' laps like manna from heaven, with no prior attachments to any particular modes of interpretation, then faced with these interpretive options we might have to choose among them on something like ordinary normative grounds. ("After all, what is to become of these things; what are we to do with them.") But in the real world, legal texts aren't just fortuitously appearing sets of words. They're statutes and contracts and constitutions: entities that came into being as legal objects, that took form under a particular system's legal rules, and that already made some contribution to the law simply by virtue of their adoption or enactment. They took on whatever legal content they had then, under the law as it stood at the time. So there's no need to cast about for an interpretive theory at large. In the non-manna-from-heaven world in which legal instruments are produced by existing institutions, under existing systems of legal rules, there's no separate process of interpretive choice for a theory of interpretive choice to be a theory of.
Sunstein can deny that originalism is the law-and has. But that should be the argument, not the various bad things that originalism would do if it were true. Because if it is true, then pointing out the defects of our existing law, and attributing them to others, has a very different valence.
To me, the problem isn't (just) that non-originalist theories can cause bad things too. (Though that is a problem.) The problem is that it's not clear what work 'theory x causes bad things' is supposed to do in legal argument. If X and Y were two competing theories of physics in the 1930s, and X would make it possible to build an atom bomb, the claim that 'bombs are bad' wouldn't entail that 'X is false.' It doesn't even suggest it, ceteris paribus. The two claims have nothing to do with one another; each rests on different grounds. In the same way, an argument 'against X being the law' is ambiguous: it could mean that 'X isn't our law now,' or that 'X is our law but shouldn't be.'
So the question is how results matter to legal arguments. Is 'results matter' part of the nature of law? Does it follow from specific features of our law? (Which ones?) Is it a claim about legal method, like Mitch Berman's reflective equilibrium theory? Is it a historical claim, like 'Congress wouldn't have wanted a statute with this consequence, so we're probably misreading it'? Or is it just a law-reform or political-obligation claim, like 'we have reason to change the law or even perhaps to disobey it'? Unfortunately, one reason why Sunstein's column is so rhetorically effective is that it isn't wholly clear on the point.
One last thought on Sunstein's questions: in some sense, these are precisely the questions that senators shouldn't ask. A televised hearing is a bad forum for airing deep and sophisticated theories of law. Nominees can't speak well to controversial issues, and they're explaining things to a largely nonlegal audience, both in and out of the room. The test that faces them isn't whether their views are legally correct, but whether they sound legally correct on TV.
And senators are politicians; they may happen to take an interest in constitutional theory, but their incentives are to mind the next election. So the nomination process selects, as Sunstein notes, for those whose legal views already mostly cohere with a major-party platform. This is a bad feature of nomination hearings. "Robert Bork's America"-type questions get misleading, platitudinous answers. Reynolds v. Sims, say, is far more controversial within the legal academy than with the general public; but who wants to try explaining that in a hearing?
All of this is to say: the difference between law and policy preferences is crucially important, and whatever undermines it is to be avoided (ceteris paribus).