The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, Michael Dorf published a long and characteristically thoughtful blog post, How Determinate is Originalism in Practice?
When originalism began gaining traction in the 1970s and 1980s, its proponents frequently cited its supposed constraining impact on judges as a virtue. This claim fit well both with originalism's ideological origins and its nature at the time. Although appeals to the framers were a common trope in judicial rhetoric in prior periods, by the time originalism began to crystalize as an "ism," it was largely a program of resistance against what conservatives saw as the excesses of the Warren Court and, to the extent that the Burger Court built on or failed to cut back on the work of the Warren Court, the Burger Court as well. At the time, originalism was generally promoted as aiming at implementing the framers' intent, which was thought to be reasonably determinate in its concrete applications. E.g., if the framers of the Fourteenth Amendment did not intend (or expect) it to forbid most forms of sex discrimination, then arguments for sex equality under the Fourteenth Amendment were inconsistent with this first wave of originalism.
Partly in response to withering criticism, originalism morphed over time, so that most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text, rather than the concrete intentions and expectations of its framers and ratifiers. And because the original public meaning of the more open-ended clauses of the Constitution tends to be, well, open-ended, original-public-meaning originalism tends to be substantially less determinate than (at least the claims that have been made for) old-style original intent. Originalists solved the problem of seemingly having to support a view of the Constitution that allows official sex discrimination and other unacceptable practices by sacrificing determinacy.
Except that most original-public-meaning originalists cling to determinacy as a virtue. They no longer claim that originalism is close to fully determinate, but they still frequently claim that it is substantially more determinate than other approaches to constitutional interpretation. This claim is empirically testable. If originalism were a methodology that constrained justices, one would expect that a justice who practiced originalism would be somewhat ideologically unpredictable. And yet, as I shall explain, originalism in practice is predictably conservative.
I will have more to say about this soon, when I post an SSRN draft of my forthcoming symposium essay, "Originalism as a Constraint on Judges." But for now, Larry Solum has been writing a series of illuminating (and I think insightful) responses:
Larry's first post unpacks Dorf's claims and makes an important set of terminological distinctions:
Dorf's post claims to be about the question whether originalism is determinate, but I believe that he is conflating three distinct concepts, which we can call "determinacy," "constraint," and "compliance." … I believe that Dorf's post is not actually about either determinacy or constraint. His real target is compliance. The core of his argument is that originalist judges do not comply with originalism, because if they were complying, their decisions would be less conservative than they actually are.
Larry's second post discusses the major families of current originalist theory and their responses to indeterminacy:
I believe that the view that Dorf is actually referring to is the version of originalism held by one (possibly a few) originalist—Jack Balkin, who calls his view "living originalism." For reasons that I will explain below, public meaning originalists other than Balkin do not endorse a form of originalism that results in indeterminate constitutional meaning that authorizes discretionary decisions by judges about the content of constitutional doctrine.
And Larry's third post dives into an empirical study that Dorf's original post relies on:
Can we reach Dorf's conclusion, that [Supreme Court Justices Antonin] Scalia and [Clarence] Thomas vote more conservatively than would be expected on the basis of "honest originalism" on the basis of a sample of five cases? Moreover, Dorf's argument is based on generalization from the behavior of two Justices? Can be generalize about originalist judges in general based on a sample size of two?
I suspect this will not be the end of the conversation. Originalism's determinacy/constraint is a perennial issue, about which much is said, and most of it repetitive. This is one of the most useful exchanges on the topic I have read in some time.