The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here's the introduction:
What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the "new originalism" has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it's lost its ability to resist falsehood and manipulation-and lost the firm roots that made "That Old-Time Originalism" great.
To Smith, the new originalism lacks any claim to the Framers' authority. Because it looks to the meanings of the Framers' words, and not to their substantive expectations, it can be made by skilled sophists to justify things "the enactors wouldn't have approved-would perhaps have deplored," like rights to abortion or to same-sex marriage. If the Framers had foreseen such consequences, their Constitution "would have been reworded to avoid the unwanted results, or would not have been enacted at all." That makes the new originalism irrational, a product (at best) of the Framers' "ignorance" and lack of foresight, not their "mindful deliberation." Instead, Smith counsels a return to the "original decision," which (he argues) rules out any deplorable consequences that the Framers would have opposed.
Smith's portrayal is tempting, too. But the old originalism was abandoned for a reason, namely that it was wrong. The Framers didn't enact particular outcomes fixed in amber; they enacted various rules of law, rationally authorizing future actors to put those rules into effect. When those original legal rules require us to consider outside facts, their applications will change as the facts change on the ground. Which facts were supposed to matter is a question of law, language, and history-and not of policy preferences, whether the Framers' or our own. In the end, the soul of originalism remains safe-and the only answer to originalism done badly is more originalism, done well.
And a few of my favorite lines from the rest, with Steve's characteristic flair:
You legislate in general terms only if you're more worried about getting the specifics wrong yourself than about some other actor getting them wrong. (That's why we have general laws against murder and theft-not because juries never make mistakes, but because we can't hire psychics to write very long bills of attainder.)
Smith is willing to assume that the Balkins of the world get the original meaning right, and that their surprising conclusions follow from their premises. But these concessions are half-hearted. It's hard to avoid the sense that Smith is fighting his own hypotheticals
And the conclusion:
Like anything else, the new originalism can be done poorly, or even fraudulently. That doesn't mean that we should stop doing it-any more than "junk science" should lead us to ban science, or motivated reasoning should lead us to abandon reason. Not every bargain is a Faustian one; some trade-offs really are worthwhile. In each case, we do what we can with the tools that we have. And in the end, as G.K. Chesterton put it, "if a thing is worth doing, it is worth doing badly."