The Volokh Conspiracy
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On his blog, Dorf on Law, Cornell law professor Michael Dorf has a very thoughtful and measured assessment of The Stakes of the Originalism/Texualism Debate. In it, he starts with the proposition that, with the confirmation of self-described originalist Neal Gorsuch to the Supreme Court, originalism is here to stay for the foreseeable future. With this in mind, he sets out to examine the stakes in this debate. He does so in a clear-eyed and nuanced manner, and I recommend you read the whole thing.
In this post, I want to highlight his two key moves. First, he makes the increasingly familiar claim that, if original meaning is taken at a sufficiently high "level of generality," there may be very little difference between the results of an originalist and nonoriginalist evaluation of constitutional meaning. Here is how he puts the matter:
What makes originalism ostensibly distinct from other views is what Prof. Larry Solum has called the "fixation thesis"-the notion that the meaning of a provision is fixed at the moment of its enactment-and the "constraint thesis"-the notion that this fixed meaning constrains constitutional practice. One can concede both points to Solum and concede further that whether judges accept these theses affects how they write opinions justifying their rulings. However, for reasons similar to those elaborated on this blog last week by Prof. Eric Segall in describing a recent article by Prof. Peter Smith, I think that whether a judge accepts Solum's theses has little immediate practical impact. Nonetheless, the stakes in the debate over originalism are not as low as one might think, as I shall explain.
As Smith and Segall and others have argued, if a judge believes that the original meaning of a constitutional term is best understood at a high level of generality, then the constraint principle does little constraining. "Equal protection" is a good example. Most of the framers and ratifiers almost certainly thought that most forms of de jure sex discrimination were consistent with equal protection of the laws, but, as nearly all contemporary originalists would say, the framers' and ratifiers' concrete intentions and expectations do not define the meaning of the term equal protection. To the extent that we care about intentions and expectations as evidence of meaning, we care about semantic intentions and expectations. If, say, as some originalists argue, the original meaning of the Fourteenth Amendment was a prohibition on state laws redolent of caste distinctions, then sex discrimination is presumptively invalid today, because we now recognize, as our nineteenth century forebears did not, that sex-based distinctions generally are caste-like distinctions.
Thus, where a "living Constitutionalist" might say that the meaning of equal protection evolved between 1868, when the Fourteenth Amendment was enacted, and 1973, when the Supreme Court decided Frontiero v. Richardson, a semantic originalist would say that the meaning of the Fourteenth Amendment was constant all along. In this example, Solum's constraint principle would constrain the rhetoric of a modern sex discrimination case, but it would not constrain the outcome. Both originalists and living constitutionalists who think that sex discrimination violates contemporary notions of equality would treat such discrimination as presumptively invalid.
That is not to say that there cannot be cases in which the choice between accepting Solum's two theses and rejecting them makes a difference. But it is to say that in the cases that are most divisive-which involve constitutional provisions that are naturally read at a high level of generality-the choice will not be decisive.
A couple thoughts on this premise. When I published my 1999 essay, An Originalism for Nonoriginalists, I asserted that, properly understood, original public meaning originalism offered progressives many more favorable results than they had assumed. So I agree with some of this. I don't want to spend too much space on this premise of Dorf's (and Smith and Segall), so I will limit myself to two observations:
First, this claim implicitly concedes that the original meaning of most of the Constitution-what Sandy Levinson has called the "hard-wired" part of the Constitution-is determinate enough to yield results. The "fixed" original meaning of "state" is definite enough to apply to California-though California was not imagined at the time of enactment-and so is the text that allocates two senators to California irrespective of its population. Why, I ask, should we follow this text today if the original meaning is not "fixed" and does not "constrain" current legal decision makers? Put another way, why would a living constitutionalist who rejects either the fixation thesis or the constraint principle adhere to the text here if doing so violates his or her deeply held commitment, say, to "one-person-one vote"? Perhaps an academic could take this view, but could any Democratic judicial nominee be confirmed by even a Democratic-controlled Senate if she candidly claimed the power to override this express constitutional constraint?
Second, I doubt that the handful of "constitutional provisions that are naturally read at a high level of generality" are nearly as general as typically claimed by nonoriginalists. For example, the words "equal protection" do not appear as a free standing "equality principle," but appear in the phrase "equal protection of the law" and this passage is embedded in a larger clause that also refers to the "privileges or immunities of citizens of the United States" (which no state statute may abridge) and the "due process of the law" (which no state shall deny when depriving a person of life, liberty, and property).
Read in their entirety-and in context- the "natural" reading of these provisions may be far less general than is claimed. In particular, in context, the original meaning of the "equal protection of the law" may refer to the affirmative governmental duty of protection or equal enforcement "of the law"-that is, statutes that are otherwise constitutional (because such laws are not violative of either the Privileges or Immunities or the Due Process of Law Clauses). I cannot substantiate this claim here but, if true, it would make the original meaning of the "general" clauses far less underdeterminate, which would reintroduce a gap between public meaning originalism and living constitutionalism.
But for now, I want to take Professor Dorf's charitable assumption about happy results as given and consider his second move, which is the heart of his claim about the remaining stakes of the debate:
2) Bait and switch. The fact that originalists and living constitutionalists often reach the same outcomes in concrete cases does not necessarily mean that the practical stakes are low, because even as, in academic circles concrete-expectations-and-intentions originalism has given way to semantic originalism in the last three-plus decades, in public debate originalism means concrete-expectations-and-intentions originalism. I will cheerily concede that the academics who propound semantic originalism thereby intend only to work out what they regard as the best (or what many of them think is the only legitimate) approach to constitutional interpretation and construction, without any regard for the political consequences. But even if unwittingly, in doing so the academics enable concrete-expectations-and-intentions originalism-which has a conservative, even reactionary, bias-to flourish.
I made this point at length in a 2012 essay in the Harvard Law Review, in which I reviewed Balkin's Living Originalism and Prof. David Strauss's The Living Constitution. Here is a small sample of what I wrote there:
"Widespread acceptance of Balkin's views would allow conservatives to say that even liberals now accept originalism but then turn around and define originalism narrowly. Balkin and other leading "new" originalists like Professors Randy Barnett, Lawrence Solum, and Keith Whittington make originalism respectable by answering objections leveled at "expectations-based originalism"—but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers' and ratifiers' expected applications in considering concrete cases."
Thus, although the scholars would never say that there can be no Fourteenth Amendment right to abortion or same-sex marriage simply in virtue of the fact that most members of the Reconstruction Congress and the general public in 1868 thought there was no such right, politicians and justices who, during their confirmation hearings talk the talk of semantic originalism, make just such academically discredited arguments in reliance on the framers' and ratifiers' concrete expectations and intentions.
The stakes are high because academic originalism-even if through no fault of academic originalists-legitimates reactionary jurisprudence. [My italics added.]
I confess I missed Professor Dorf's review of Jack Balkin's Living Originalism, so this is the first I have heard this exact point being made by him, and I think it is worth pondering. For me, it raises the following questions:
- Assuming we think that original public meaning originalism is the correct method of interpretation-in part because it avoids the problems associated with framers' expectations originalism-should we nevertheless reject it because it will "legitimate" framers' expectations originalism being practiced by "judges, elected officials and the public" under the rubric of "originalism"?
- Put another way, would it be reasonable for someone like me to say, "Oh my. Because my efforts to explain and justify a correct version of originalism 'legitimates' the view I have argued against, I should reject original public meaning originalism in favor of living constitutionalism"?
- Mightn't it be better to respond to the misuse of "originalism" by those who continue to insist it is governed by original framers' concrete expectations by criticizing them for doing it wrong; to explain to them and others how their supposedly "originalist" analysis is actually not supported by the original meaning of the text? (That was my response to Justice Stevens's original framers' intent dissenting opinion in Heller.)
- Conversely, if such pragmatic considerations should dictate our choice of methodology (rather than our best assessment of which method is correct), why shouldn't Dorf (and Smith and Segall) abandon their "living constitutionalism" and embrace "original public meaning" originalism so we can present a united front in criticizing erroneous judges and elected officials from within originalism? (But that united front might come at the expense of some results that living constitutionalists desire, which returns us to Dorf's first premise.)
- Moreover, given the degree to which they concede that the original meaning of the "hard wired" portions of the Constitution is both fixed and constraining, however, why don't they accept originalism for the whole of the text-at whatever level of generality it is written-and then turn their guns against misbegotten "originalists"?
I could guess at some answers to this last question, but I do not want to speculate about that here. My aim in this post is merely to thank Professor Dorf for the tone he adopted in his post, and to bring his thoughtful challenge to the audience who reads this blog.
My preliminary reaction is that, while Professor Dorf may have accurately described why some (many?) nonoriginalists viscerally reject public meaning originalism even where it reaches the results they like-indeed he may be explaining why thoughtful academics who see the merits of original public meaning originalism nevertheless feel compelled to reject it-he has presented, at best, only a very weak reason to reject originalism in favor of living constitutionalism.
UPDATE: My colleague Larry Solum has a characteristically "Larry Solumesque" response to Professor Dorf entitled The Role of Noble Lies in Constitutional Scholarship: Comments on Dorf and Barnett.