Intrinsic vs. Instrumental Justifications for Originalism

Some originalists believe that following the original meaning of the Constitution is intrinsically valuable, while others support it only for instrumental reasons. The difference between the two approaches has important implications.


Originalists disagree among themselves about what exactly qualifies as the original meaning that judges and other government officials are required to obey. They also differ on the even more fundamental question of why we should obey the original meaning in the first place. Some believe that adhering to original meaning is inherently valuable, independent of consequences. These people can be called "intrinsicist" originalists. Others advocate originalism for instrumental reasons: they believe that following the original meaning leads to good consequences, or at least better ones than living constitutionalism. The difference between intrinsic and instrumental justifications for originalism has important practical implications, as well as theoretical ones.

In an interesting recent article, University of Arizona law professor Andrew Coan proposes a thought experiment that highlights these disagreements:

As a thought experiment, [I] propose… a constitutional amendment explicitly mandating a nonoriginalist approach to constitutional interpretation. This thought experiment has a number of interesting implications for both originalism and nonoriginalism and for the law of interpretation more generally…..

Without further ado, here is my proposed amendment:

Section 1. The United States Constitution, including this Amendment, shall be construed to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society.

Section 2. Originalism is not our law and never has been.

As Section 2 implies, this is intended as a clarifying amendment… Even if the constitutional text explicitly mandated originalism, nonoriginalist Supreme Court justices and other constitutional decisionmakers would still have good normative reasons for ignoring that mandate, reading it flexibly, or following it selectively. At most, such an amendment might supply countervailing normative reasons for adhering to originalism, which may or may not outweigh the reasons for adhering to some form of nonoriginalism. Or so I shall argue.

The same does not hold for an amendment explicitly mandating nonoriginalism. Rather, the logic of originalism would compel nearly all committed originalists to respect the original meaning of such an amendment. The only originalists for whom this would not be true are what I have called "substantive originalists," who embrace the Constitution's original meaning because they believe it to be morally just or likely to produce good practical consequences. But this is a relatively small group. Other originalists would be compelled by their own precepts—popular sovereignty, written constitutionalism, legal positivism, etc.—to embrace nonoriginalism.

Coan's experiment does indeed highlight an important difference between intrinsicist originalists and "substantive" ones (whom I refer to as "instrumental"). The former group would seem duty bound to follow Section 2 of the anti-originalism amendment, so long as it was duly enacted. The latter might well conclude they have good reason to reject it, or at least allow it to be overridden by other considerations in some cases.

Instrumental originalists are a more significant group than Coan suggests. They include such prominent constitutional theorists as John McGinnis and Michael Rappaport (authors of an important book defending originalism on consequentialist grounds) and Akhil Amar, probably the best-known left of center originalist, who argues that we should privilege the original meaning of the text over judicial innovations because the former has "often proved more enlightened and enlightening than the latter." Even many originalists who embrace intrinsicist arguments also often rely on consequentialist ones. I suspect many intrinsicists would balk at originalism if they thought it would lead to large-scale misery and injustice, and some might do so even if it simply turned out that some other approach would lead to a substantially better political order.

I. Problems with Intrinsicist Justifications for Originalism.

Nonetheless, it is easy to understand the appeal of intrinsicist justifications for originalism. They obviate the need to to make difficult empirical and institutional judgments. Unfortunately, intrinsicist justifications tend to fall apart under close inspection.

One particularly common argument of this type is the idea that originalism is the only logically possible way to interpret a text, perhaps even the only one that can avoid lying or distortion. But there is nothing logically incoherent or necessarily deceptive about nonoriginalist interpretation of texts. We in fact engage in nonoriginalist interpretations of texts all the time, for example when we put on performances of Shakespeare plays influenced by modern ideas that were unknown to the original 16th century audience. There is nothing either illogical or deceptive about such practices, so long as we are honest about what we are doing.

Another standard intrinsicist rationale for originalism is the idea that following the original meaning is required by respect for democratic processes. This argument runs into the well-known objection that the most important parts of the Constitution—the original 1787 Constitution, the Bill of Rights and the Reconstruction Amendments—were enacted by processes that were very far from democratic by our standards. In all three cases, virtually all women and most black men were excluded. Even if the ratification processes had been more democratic than they actually were, it is not clear why respect for democracy requires us to privilege the decisions of long-dead political majorities over those of today. The original meaning of the Constitution imposes many severe constraints on current democratic processes, including tight limits on the scope of federal power, an unwieldy system of separation of powers, a significantly unrepresentative Senate and a variety of individual rights enforceable by strong judicial review wielded by unelected, life-tenured judges. And all of these democracy-constraining features are very hard to to remove by using the amendment process. This is one of the reasons why left-of-center critics have long denounced the original Constitution as undemocratic and elitist. For these and other reasons, there is a great deal of tension between originalism and majoritarian democracy. Committed small-d democrats would do well to adopt some version of living constitutionalism.

Intrinsicist originalism can also be defended on the grounds that we have agreed to obey the original meaning by consenting to the American system of government. Judges and other government officials, perhaps, have done so by taking an oath to uphold the Constitution. This argument, however, runs into the painful reality that the US government (like virtually all other real-world governments) does not in fact have the consent of the governed. We have not been given a meaningful opportunity to freely reject its rule. If we have consented to it in some morally binding way, that actually cuts against originalism rather than in favor of it. The political and legal system we have has—at least for many decades—been ruled in large part by nonoriginalist interpretations of key portions of the Constitution. They have been adopted by all three branches of government. If the present system enjoys our consent, what we have consented to is not consistent originalism, but some hybrid combination of originalism, various versions of living constitutionalism, and ad hoc decision-making unguided by any overarching theory.

This point about consent applies to judges and other government officials, as well as ordinary people. The former could plausibly conclude that their oath to uphold the Constitution refers to a living-constitution or hybrid version thereof, rather than the original meaning.

Finally, some originalists argue that we must obey the original meaning because that is the only conceivable way to adhere to the "rule of law." The rule of law means different things to different people. But, at least on several standard conceptions of it, the relationship between the rule of law and originalism is merely a contingent one. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning.

For example, the rule of law is often defined in contrast to "the rule of men." Whereas the former is based on general, impersonal rules, the latter is subject to the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. Consider a constitution that includes a provision saying that "the meaning of the law is whatever the president says it is," and historical evidence indicates that this clause was meant to give the president unfettered power to define what counts as lawbreaking and punish offenders as he sees fit. In this scenario, adherents of the rule of law defined as the antithesis of the rule of men, would do well to reject originalism and try to give this clause as narrow an interpretation as they can. They should try to minimize its impact in much the same way as liberal Christians and Jews minimize the significance of biblical passages endorsing slavery and the subordination of women. Similar contingent factors affect the connection between originalism and other standard conceptions of the rule of law.

II. Implications of Adopting an Instrumental Justification for Originalism.

In my view, like that of McGinnis and Rappaport, originalism can only be effectively defended on instrumental grounds. I think the original meaning of the US Constitution protects liberty and several other important values better than any currently feasible alternative is likely to do. And, like them, I believe (at least tentatively) that constitutional rules adopted through supermajority processes are likely to be, on average, better (on consequentialist grounds) than those developed by judges or conventional political majorities.

I will not try to defend these conclusions in any detail here (though I have in part done so previously). I will instead note some important implications of instrumental defenses of originalism, which qualify their scope.

If originalism must be defended on instrumental grounds, that strongly implies that it may not be the right approach to all constitutions at all times. If the original meaning of a given constitution leads to sufficiently harmful or unjust results, some version of living constitutionalism may well be the lesser of the available evils. What if, for example, the great abolitionist William Lloyd Garrison was right to believe that the original US Constitution was proslavery—"a covenant with death and an agreement with hell," as he famously put it? In that event, there was a strong case for adopting a living constitution approach to interpretation, at least until the enactment of the Thirteenth Amendment. If the original meaning promotes and protects slavery, that's an enormous consequentalist strike against it. Many other abolitionists argued that Garrison was wrong about the original meaning. But if he was correct (and there is nothing inherent in the nature of originalism to prevent it), then that would be a strong justification for rejecting originalism on consequentialist grounds.

Even if originalism is, on instrumental grounds, the best approach to interpreting the US Constitution and always has been, it may not be the best for other constitutions in other countries. Much depends on the specific content of those documents' original meaning, and what the realistically feasible living-constitutionalist alternatives are. Instrumentalist defenders of originalism should also be open to the possibility that originalism is not the best approach to every one of the fifty state constitutions. Many of them are very different from the federal Constitution, in various ways. The instrumentally best approach to the latter may not hold true for all of the former.

Finally, even if originalism turns out to be the instrumentally best approach to constitutional interpretation today, and even if this is true for all currently existing constitutions, it does not necessarily follow that this will continue to be true in the future. New approaches to constitutional theory might be developed, and one of them may turn out to have even better consequences than the best possible version of originalism. Instrumental originalists—myself included—need to keep an open mind about such possibilities.

None of this proves that individual judges must reevaluate first principles of originalism (or living constitutionalism) every time they decide a case. There are lots of good reasons—including instrumental reasons—to avoid doing so in the vast majority of cases. But legal theorists and Supreme Court justices would do well to periodically reevaluate their foundational premises from time to time.

In sum, there is good reason to reject intrinsicist justifications of originalism in favor of instrumental ones. But the latter have a number of potentially uncomfortable implications. Of course, the same thing is true for any plausible version of living constitutionalism. No approach to constitutional theory can sidestep difficult questions about the reasons why we should adopt it in the first place.

UPDATE: Originalist legal scholar Michael Ramsey has some related thoughts on the Coan article here.

UPDATE #2: Michael Ramsey comments on this post here. He suggests that adherence to the rule of law may be an instrumental rather than an intrinsic justification for originalism. He may well be right about that. I included it in the intrinsic section because it is often claimed that the rule of law is an inherent attribute of originalism, and that following the original meaning automatically promotes it, regardless of the content of the latter. For reasons I explain in the post (and in more detail here), I think the relationship between originalism and various standard conceptions of the rule of law is a contingent one, highly dependent on the specific content of the original meaning.

NEXT: Lochner and Child Labor

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  1. Is the Shakespeare link to the correct article?

  2. Respect for the constitution is what keeps the USA from being two wolves and one sheep voting on what’s for dinner.

    Such respect is based on a very stiff, if not unbending, understanding of the words in the constitution.

    The further away from the words we get, the weaker the protection from the tyrannical majority.

    1. Which explains why England is the authoritarian nightmare we see today.

      You can say the Constitution is a good and great thing without needing to go quite that dramatic.

      1. In many respects England IS an authoritarian nightmare compared to th US. Much less freedom of speech, for instance.

        1. A neat marginal argument that might even have a causal relationship. Also well short of the sweeping pronouncements in the comment I was replying to.

          1. Or, more formally, Sarcastro does not want you to construe his comments according to their original meaning.

  3. “Its not clear why respect for democracy requires us to privilege the decisions of long-dead political majorities over those of today.”

    Of course. There is a way for modern democracies to change the meaning of the fundamental government-forming documents: democratic supermajority.

    It isn’t about hampering the people of any generation. It is about hampering the generationless political demagogue by slowing down his calls for massive change…to his advantage, in hopes of fending off various Men Who Would Be Kings for as long as possible.

    Unless I missed something about all of human history, everywhere and everywhen.

    1. On the other hand, modern society has locked down the problem of demagoguery by the vote itself which stops OH MY GOD Putin has twisted things and jailed and killed opponents, err, the vote itself has put a modern gate forever stopping that ancient prob OH MY GOD Chavez and his Next Gen cronies did the same thing, anyway, modern peaceful democracies need not concern themselves with supermajor OH MY GOD that jackhole in Turkey doing the same thing, anyway, peaceful OH MY GOD that Chinese dude just consolidated power in ways even the communist regime found

      But aside from these rare outlier situations, I’m sure our chin-rubbing whistling past the graveyard is an overreaction to The Power of Simple Majorities!

      1. ^THIS^ About a million times ^this^.

  4. Section two of the proposed amendment seems a bit strange; Do constitutional amendments usually incorporate (false!) assertions concerning contingent historical facts? That amendment seems positively argumentative.

    1. I think it’s supposed to be argumentative. Apparently non originalist judges like to steel themselves for their next amazing backflip by chanting “We have always been at war with Eastasia !”

      Next week :

      “Donald J Trump is not President of the United States, and never has been. Please Mom, tell me it was just a nightmare !”

    2. You see Brett, there’s this concept called a ‘Thought Experiment’ in which one posits a hypothetical, which may or may not be true (or even possible), for the purpose of enabling arguments for and against a proposition…arguments that may not have been conceived without use of a hypothetical that ‘seems positively argumentative.’

      Some people respond to such a thought experiment not by arguing the position, but by arguing the hypothetical. This often takes the form of saying “That’s ridiculous!” Those of a gentler persuasion, however, might say only that “…seems a bit strange.”

  5. Anyway, the logic of Originalism, so far as I’m concerned, is just that that’s how meaning is determined. That’s how you read documents, if you care what they mean, rather than being determined to impose on them a meaning you like regardless of what the document actually means. A law, a grocery list. This isn’t a legal issue, it’s a language issue.

    Originalism is just good faith in reading the Constitution. It’s rejected by people who are more concerned that the Constitution ‘mean’ something they like, than that it be honestly interpreted.

    From that perspective, mandating living constitutionalism would be functionally equivalent to an amendment repealing the Constitution, and just instituting rule by judges. Which would be a really, really bad idea, but if an amendment mandating that were ratified, there you are: No more Constitution anymore. It wouldn’t be honest to pretend otherwise, the Constitution would be dead.

    1. The decisions judges are making just aren’t settled by the meaning of the words in the ordinary sense of the term. Maybe what you mean is that it’s how we infer the *intent* of the parties in agreeing to be bound by the constitution?

      I mean surely you agree that most originalist decisions (other than say judging the age requirement for being president) require a lot more research into historical practices than merely learning their dictionaries and how they used various terms would provide. The fact we need to look to their expectations and political feelings shows that we are asking something more like: what effect did they expect these clauses to have.

      But once you admit it’s not the literal meaning of the sentences at issue your argument becomes much less strong. All the time we enforce contract provisions against people who would protest “But that’s not how I thought that clause would operate.” Moreover, this pulls in all the problems that have been raised against inferring the intent of congress to interpreting the constitution.

      1. The question of historical research is a distraction. You may not be able to determine whether “BANANA MUFFIN” meant something different when it first appeared in the 11th Amendment to what it means now. In which case you can use what it means now as your best stab at original meaning. But if you happen to have done your research and you discover that actually it didn’t mean what we now think of as “BANANA MUFFIN” then originalism tells you to go with what it used to mean. You follow the text, and if there is a clash between what the text means now and what it meant then, you go with then.

        As for the rest, you’re confusing the meaning of the text, with the intent of the lawmakers and the application that was expected by the lawmakers. Which are different things. We’re talking meaning not the other two.

        “But once you admit it’s not the literal meaning of the sentences”

        So, no. I’m not admitting that. It’s the literal meaning of the sentences. Interpreted in the context of the literal meaning of the surrounding sentences. But if it says “People called Peter shall have their heads chopped off”
        then it’s curtains for you, son, intent or expected application notwithtanding.

        1. But Lee. We hear that originalism is about “original expected application,” or something, not the text.

          I myself don’t think “originalism” means anything very specific.

          1. Of course you’re going to hear that if you’re listening to Jack Balkin. I’m not aware of anyone claiming to be an originalist that promotes original expected application.

            And yes, “originalism” can encompass original intent or original meaning, though the latter is much more favored these days. But that doesn’t mean that “originalism” is meaningless, it just means that it’s ambiguous, unless you specify whether you mean original intent or original meaning.

            “Put your shoe on” is similarly ambiguous. But it’s not meaningless. It takes a little further specification to identify which shoe. Over time people who claim to be original intenters will fade away, and we should be left with original meaning. Or rather we’ll have actual originalists (original meaning) and anti-originalist straw men.

            A bit like phonics. First there was phonics. Then the anti-phonics folk invented synthetic phonics, and called phonics “analytic phonics”. But the term was merely invented to make it seem like there were lots of different kinds of phonics each valuable in their own way. Synthetic phonics actually meant “not phonics.”

            The naval term is ‘making smoke.”

            1. OK, Lee.

              But is “original public meaning” which I take it you are referring to, so well-defined and well-known?

              I doubt it. What is the original meaning of “due process?” Was it simply the procedures and rules that were in place at the time, or was it intended to be a broader requirement for fairness? And was there a consensus? Did it mean the same thing in 1868 as in 1789?

              Whatever your answers, how do you know?

              1. I feel sure I dealt with that already. Oh yes. See BANANA MUFFIN right up there.

                Just as original meaning is a further specificaion of originalism, originalism is a further specification of textualism. If one says – as I do – that the text should govern, not the intent, not the policy implications as perceived by the judge, but the text; it’s a perfectly reasonable retort to say OK, but the meaning of the text can change over time. Is it the meaning of the text now, or the meaning of the text when it was enacted ?

                And the originalist answer is its the original meaning not the contemporary meaning – to the extent that there’s a difference that would affect the outcome of the case.

                Now, even if we were using current meaning, we’d still have to puzzle out what “due process” means. Nobody’s pretending that textualism is a magic bullet that always and instantly gives a nice clear unambiguous answer. Otherwise we could churn out lawyers in a week rather than a number of years. And likewise the original meaning is going to be even harder to find than the current meaning. But all that means is that if you are Mr A, in the case of Mr A v Ms B, and you think the original meaning will help you beat Ms B, who is suited better by the current meaning, you’re going to have to come up with some good historical analysis to convince the judges that the original meaning was different from the current meaning, Or you’ll lose. I don’t believe this is rocket science.

                1. No. Your banana muffin example doesn’t answer the question, assuming that in 1789 everyone pretty well agreed on what a banana muffin was. There is no disagreement on what it means to be 35 years old.

                  I’m talking about less well-defined concepts, on which there may not even have been general agreement, so what are we looking for? I f we had a time machine and journeyed to 1789, how would we proceed when we got there? (Let’s not forget to take some antibiotics with us.)

                  I’m also asking how we are trying to determine the meaning of a provision – is it a principle or a set of specific instances. Let me clarify. I’ve seen people claim that the ban on “cruel and unusual punishment” does not prohibit any punishments that were in use at the time. Alternatively, one could argue that the ban is a general principle, to be applied in light of current knowledge and circumstances. To me, the latter makes more sense than the former. I don’t know if that is “living constitutionalism” or some sort of originalism, or something different, but that is how I think about these things.

                  So, for example, the right to counsel is different today, because things have changed and in today’s legal system a lawyer is a necessity if a defendant is to have any semblance of a reasonable trial, or plea bargain, for that matter.

                  1. There is substantial linguistic evidence indicating that “C/U Pun” referred to punishments deviating materially from those in existence at common law.

                    The corpus linguistics project at BYU may add a relative degree of certainty to seemingly abstruse terms.

                  2. As lawdog suggests “cruel and unusual” may well have been a term of art, in which case the originalist interpretation would be to use that term of art as understood at the time, if that can be discerned.

                    But if, for the sake of argument, let’s suppose it was not a term of art, but merely a ban on any punishment that was both cruel and unusual, then we have to work out what was meant by “cruel” at the time, and by “unusual” at the time. Neither word is entirely precise, so there is going to be more vagueness than there would be with “35 years old” which is pretty precise.

                    So let’s imagine that we do our researches and conclude that ‘cruel” meant “causing pain or suffering.” At the time, it may have been thought that having your fingernails pulled out involved pain and suffering, that being required to dig a hole caused no pain but some suffering and that being required to listen to a sermon did not involve pain or suffering. Over the next two hundred years, let us suppose that scientists confirm the original view that having your fingernails pulled out does cause pain and suffering . But that being required to dig a hole actually causes not pain or suffering but great joy and happiness. Whereas it turns out, being required to listen to a sermon causes suffering but no pain. And in the same 200 years, ‘cruel” has come to mean “causing pain AND suffering.” What to do ?

                    1. Well we stick with the original meaning of cruel ? so either pain or suffering will do, we don’t need both, despite the current meaning of ‘cruel.” So we’re looking for things that cause pain or suffering. Which would be the fingernails and the sermon. Not the hole digging. So we apply our current understanding of what items fall into the original category “cruel” = “causing pain or suffering.” The original expected application, of course, would be the fingernails and the hole, not the sermon. But we’re not aiming for the original expected application. That’s Jack Balkin’s straw man. And if we were textualists, but contemporary meaningists not orignalists, we’d go for the fingernails only, because sermons may cause suffering but they’re not painful.

                      Then we’d slap on our analysis of “unusual” and filter out from our banned list cruel punishments which were not “unusual.” So if the fingernail punishment were commonly applied, we’d be good to go on all three.

                      Whereas if we were living constitutionalists the answer would simply come to us ex cathedra over breakfast.

                    2. Then we’d slap on our analysis of “unusual” and filter out from our banned list cruel punishments which were not “unusual.”

                      when you say “were not unusual,” do you mean were not unusual in 1789, or are not unusual today?

                      IMO, “unusual” needs to interpreted in the light of current practice, because “unusual” actually means “unusual.”

                    3. I assumed, having done “cruel” you would

                      (a) be clear on the principle, and
                      (b) be on the cusp of boredom

                      But OK we’ll do “unusual.” Let us suppose that these days “unusual” means “fairly rare, not common” [I do not suggest that this in fact the current meaning, I’m just illustrating.] And let us suppose that in the olden days “unusual” meant “very rare, almost unheard of.”

                      So let us say that criminals have been sentenced to having their fingernails pulled out only a few dozen times in the last fifty years, and not at all since 2001. While criminals have been burnt at the stake only five times since the founding of the Republic and none at all since the Presidency of Andy Jackson.

                      Well we ignore the current meaning, and go for the original meaning of “very rare, almost unheard of.” And then we ask what items fall into that category at the time which is legally relevant ? the time that sentence is passed. And it turns out that fingernail pulling is not common, but not nearly unheard of. While burning at the stake, that is nearly unheard of. So burning at the stake is unusual, fingernail pulling is not. However if we were hearing the case in 1795, with three recent burning at the stake recently under our belt, burning at the stake wouldn’t be unusual.

                      So we are using the original meaning of unusual, but populating the category with those items that currently fall within the original meaning.

                    4. I’m glad you have clarified your opinion. I was unclear as to your viewpoint because you used the word “were” rather than “are.”

                      I agree with you.

                      I would point out that I have read arguments, sometimes right here on this very blog, that claim this is wrong, and that the relevant time is not the present but the time of the drafting. Indeed we often hear things like, “The framers could not possibly have…” in reference to something that was not known at the time.

        2. IIUC one needs to take the Constitution in context (who, what, when, where, why, & how) to understand the root principle involved. Only then can one bring the principle forward into modern context in order to apply it. IOW basic hermeneutics and exegesis which applies to older documents not just Scripture.

          Originalism to the Constitution is similar to Apologetics to Scripture.

    2. That’s not how language works, though. Language is insufficiently prescriptive.

      Plus, the Constitution is a philosophical document, with language that is clearly not just purely directive.

      1. Language not being perfect at transmitting meaning across time is not an excuse to throw away such meaning as it does successfully transmit.

        The basic problem here is that “living constitutionalism” isn’t actually an alternate approach to interpretation. Because it’s not an approach to interpretation at all.

        It’s a decision that you’re not going to be bound by text or history, by the words themselves. But having severed “interpretation” of the text from the text itself, it doesn’t provide any easily identifiable place to get the meaning from, except the whims of the person employing it.

        Breaking the chains that bind you to an interpretation you don’t like, doesn’t bind you to some other interpretation. It frees you to pull a meaning out of your ass.

        That’s the POINT of living constitutionalism. It’s rooted in a profound dislike of the existing Constitution, the one that actually got written and ratified. It’s the judicial equivalent of sticking your fingers in your ears and shouting “Neener, neener!” because you don’t like what somebody is telling you.

        Ultimately, those are the choices: Originalism, or making it up as we go along. Because Originalism isn’t anything new, it’s just letting language work. Whereas living constitutionalism is NOT letting language work, because you don’t like what it’s telling you.

        They should just call it “Neener neener! constitutionalism.”

        1. You have argued that only originalism is legitimate in the past.

          This flies in the face of jurisprudence and history. There are myriad other ways to cabin one’s jurisprudence than tying it to history (and that has recent postings on the VC putting it’s ability to limit into doubt).

          I point to Breyer, but the philosophy in the proposed Amendment above also works. So does original purpose. So does updating definitions as our definitions change with the times. Some are textual, some are not; all are chained to the Constitution.

          The concept of the Constitution not mandating everything you want is not unique to conservatives/originalist. Nor is it as common in originalism as they would have you believe.

          For many here, it’s clear that originalism is an axiomatic talisman of legitimacy in a world where judges who disagree with them are lying and unprofessional.

          Your insistence that the point of living Contitutionalism is a dislike of the Constitution is nothing more than boring ‘your side is all bad faith liars.’ It’d be insulting if it weren’t such a bone-deep reflex in you.

          1. You point to Breyer but can’t even explain what his theory is. And for support link to an article that points out that he can’t really either. That doesn’t help.

            1. Active liberty is a purposivist jurisprudence.
              Specifically, the purpose of maximizing equality in political involvement.

              That would be a lodestone that would serve as the chains Brett claims only originalists have, yes?

              1. According to the article you posted, Breyer’s theory is a load, not a lodestone. It boils down to majority rules, except when it doesn’t.

                “His book, however, provides few guidelines for applying his theory of active liberty to actual cases. Even if one accepts his assertion that the Constitution was designed to guarantee broad participation in the democratic process, the notion doesn’t help lawyers and judges who are trying to adjudicate cases involving some of the most contested issues in constitutional law?race, privacy, and religion.”

                “Together, Breyer’s decisions suggest an ad-hoc attempt at political compromise as much as the application of legal principles.”

                “Breyer concedes that a judicial approach based on “active liberty” will not yield solutions to every constitutional debate. “Respecting the democratic process does not mean you abdicate your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in separation of powers,” he said. “We have to decide when these limits are exceeded. People tend to forget that when the limits are not exceeded. Almost everything the government does is within these limits. We have to give guidance. There is no absolute guidance, no absolute rules.”

                1. As I recall,, Breyer’s book applies his theory to all sorts of stuff. Affirmative Action, standing, freedom of speech…

                  Though the fact that a theory is not alone exhaustive doesn’t mean it’s invalid.

                  1. [FWIW, I’m more of an intensionalist than a purposivist myself, so I may not be the greatest advocate for Breyer’s view. I am comfortable stepping up to say it isn’t unreasonable or illegitimate though.
                    Of course, neither is originalism, except for where some originalists seek to delegitimize all who disagree.]

                  2. If you disagree with the article, why did you post it to explain his theory?

                    The fact that his theory of constitutional interpretation doesn’t provide a way to determine when the constitutional limits have been exceeded, except in a limited class of cases affecting political participation, greatly reduces the utility of theory. In fact, it makes it pretty worthless as a theory of constitutional interpretation. Majority rules, except when it doesn’t only works as a theory if you can explain when it doesn’t. Based on the article, Breyer can’t.

                    1. I skimmed the article, and it looked like a fair summary of Breyer’s book as I recalled it.

                      It seems it has some somewhat negative editorializing, which is fair enough – as I’ve said reasonable people can differ.
                      That you choose to ignore the summary portion and got distracted by the editorial portion doesn’t mean the article isn’t useful.
                      Loads of complete philosophies are not completely directive; that’s a silly requirement for a theory to be valid. Do you believe originalism exhausts all ambiguity in call cases?

                    2. “That you choose to ignore the summary portion and got distracted by the editorial portion”

                      That’s some pretty impressive mind reading you sanctimonious cartoon. And I’m calling just you a cartoon, not all living constituionalists. I don’t believe in judging groups by the worst examples of their members.

                      “Loads of complete philosophies are not completely directive; that’s a silly requirement for a theory to be valid. Do you believe originalism exhausts all ambiguity in call cases?”

                      Where did I suggest that a theory has to exhaust all ambiguity in all cases? Oh, that’s right, I didn’t. But as I clearly stated, according to the article you posted to explain his theory it only provides guidance in a very limited set of cases. That makes it pretty worthless as a theory.

                    3. Dude, you excerpted only the editorializing, is that not a givceaway of where you put your attention?

                      I haven’t been called a cartoon before. It’s kind of amusing in it’s ridiculousness.

                      But I am going to take a break on comments for at least the rest of the day, as things are getting unnecessarily heated – I don’t to be pissing you off; I’m criticizing your comment, not you as a person!

                    4. “Dude, you excerpted only the editorializing, is that not a givceaway of where you put your attention?”

                      No. That’s a sign about what I consider to be the most relevant parts of the article you posted to the point you were trying to make.

                      “I haven’t been called a cartoon before. It’s kind of amusing in it’s ridiculousness.”

                      You picked the term, not me.

                      “But I am going to take a break on comments for at least the rest of the day, as things are getting unnecessarily heated – I don’t to be pissing you off; I’m criticizing your comment, not you as a person!”

                      I’m criticizing you as a person. Your comments are that stupid.

                    5. See, I really like these debates; I have a really good time discussing political theories and communication methods and legal philosophy.

                      Even though we have a substantive back-and-forth, it doesn’t seem like you are having a good time.

                      I’m sorry about that, I don’t want my fun to make other people angry. But I don’t rightly know what set you off – maybe saying your understanding of living Constitutionalists is like they’re cartoons? Anyhow, I hope I didn’t ruin your day.

                      We may disagree, but you’re a worthy adversary most of the time; I honestly hope you a lovely Memorial Day weekend.

                    6. You said you were done posting for the day. I can’t trust anything you write.

                      “Even though we have a substantive back-and-forth”

                      We haven’t had a substantive back-and-forth. That would require you to actually engage in substance.

          2. Yes, I have argued that only Originalism is legitimate in the past, I do it now, and I will continue to do it in the future.

            “Originalism” is just what we call the normal process of reading a text to discover what it means. It didn’t even need a name until people tried legitimizing doing something else, instead. Living constitutionalism isn’t wrong as a matter of law, the problem is logically prior to law, it’s a language problem: They sabotage the function of language itself, because they don’t like what the Constitution is telling them.

            FDR came in, had no patience for operating under the limits the Constitution put on his power, and instead of proposing a series of amendments, he subverted the judiciary to stop having those limits enforced. Originalism as a movement is just a reaction to the way this was rationalized, a rejection of the idea that you can just up and say that a text means something you like, and expect people to accept what you’re doing as legitimate.

            1. Except that living constitutionalists are also reading the text to discover what it means as well. This isn’t some arcane practice like the Bible Code, it’s the same way you read any plain-language document, including text, subtext, context, etc. etc.

              Because what you’re arguing isn’t just that originalism is the only legitimate method, it’s that nonoriginalists are illegitimate because they are all legal realists lying about what they are doing. It’s actually the same old ‘my opposition are always in bad faith’ that is more partisan chest-beating than any substance.

          3. By process of elimination, the LC stems from a desire to evade its reasonably clear mandates. E.g., Richard A. Posner. Justice Breyer Throws Down the Gauntlet, 115 Yale L. J. 1699, 1708 (2006) (“Nor does his pragmatism escape the objection that pragmatism, as actually practiced by judges, fails to cabin judicial discretion.”). “With disarming candor Justice John Marshal Harlan (grandfather of the present Justice Harlan) told a class of law students: ‘I want to say to you young gentlemen that if we don’t like an act of Congress, we don’t have much trouble to find grounds for declaring it unconstitutional.”” Alphaeus Thomas Mason, The Supreme Court from Taft to Warren vii (La. St. U. Press, 2d ed. 1968).

            At the end of the day, the LC is judges, enacting whatever they find in their Depends, and attempting to cover it with one of Judge Posner’s “fig-leaves.”

            Originalism may not be perfect, but as Primus says, “you can’t beat something with nothing.”

    3. Also the public at the time of ratification was used to judges operating in the common law tradition and surely understood that the judicial system established by the constitution would continue it’s practice of extending and building the law via analogy, judgement and precedent.

      So you can’t insist that the courts are wrong when they don’t interpret the constitution in an originalist manner since they are exerciscing the very process of an evolving judicial interpretation over time that an originalist understanding of the constitution understood they were to do.

      1. Sophistry. As though living constitutionalism had ever limited itself to cases of actual ambiguity, or genuinely represented an effort to implement public opinion.

        1. I don’t suppose you can imagine that someone might find something ambiguous even though you don’t.

          1. I can perfectly well imagine it. I can also imagine people deciding something is ambiguous because they don’t like what it clearly says.

          2. I don’t suppose you can imagine that someone might find something ambiguous even though you don’t.

            But living constitutionalists don’t rely on ambiguity. They are happy to give words a meaning that they acknowledge was not the meaning of those words to those who ratified the Constitution. They are saying that the original meaning is now objectionable and therefore a different meaning should be substituted, apparently on the grounds that a higher level original meaning was that the Courts would have unlimited authority to modify the effect of the language and add or subtract protected parties or protected actions without oversight by the other branches (bizarre as that sounds).

  6. The fact that this Coan guy is a law professor is alarming.

  7. “Another standard intrinsicist rationale for originalism is the idea that following the original meaning is required by respect for democratic processes. ”

    I have never heard this argument ever.

    1. I do all the time – the consent of the governed was via the ratification of the original meaning of the Constitution. Any material change of that meaning without using the amendment process that destroys that consent, making America no longer a thing.

      It’s fringe-on-the-flag levels of legalistic, but you can always find people in the Internet.

      1. Fringe people like James Madison:

        The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

        By what possible claim of right do judges rewrite COTUS in their image? Where did we “consent” to this?

  8. The 9th Amendment provided a clear path to destroying slavery, but the Court was stacked with old white racists since inception. You don’t have to be a living constitutionalist to see that one.

  9. It doesn’t follow that merely because one’s support for originalism is based on instrumental grounds that it should vary based on the constitution in question or even that it is appropriate to consider particular details of our constitutional system in judging that originalism is the appropriate interpretive method.

    For instance, a certain kind of rule utilitarian might take the position that one has to adopt some universal legal interpratational rule for applying constitutional text and that while one should pick that rule by comparing the consequences it has to be the same rule in all cases. In other words, you might think originalism was justified because summing over all likely constitutions it gives the best consequences even if the application to our specific case might be a bad outlier.

    Personally, I’m a pure (non-rule) utilitarian but a similar argument can be made. One might feel confident that in the long run summing over all constitutions originalism gives the best outcome and then have grounds to be suspicious that any justification that our case is special and justifies doing something else are suspect as too tempting (too easy to trick yourself into believing).

    1. So it would be the best rule on average, and hence we should ignore variation?

      That doesn’t sound right to me.

      1. If you don’t ignore variation, it isn’t a rule anymore. The very reason for rule utilitarianism is that “just do what works out best in each individual case” is actually totally infeasible. Not that rule utilitarianism is genuinely feasible to implement, of course, but the straight quill is even more impossible.

        1. Well, it’s not a one-sentence rule. Rules can have variations for some cases.

          Here’s one: A foul ball is a strike, unless the batter already has two strikes on him, except that if it’s a foul tip and the catcher holds it, or if it is a bunt foul, it goes back to being a strike.

          Sounds complicated but we live with it comfortably.

          And why do we need a broad rule for interpreting constitutions anyway?

          1. But those are actually written into the rule.

            We need a broad rule for interpreting, because otherwise judges are just robed masters who are allowed to make shit up as they go along. And nobody in a democracy will accept the legitimacy of being ruled by unelected robed masters.

            The only claim to power they have is that they’re just enforcing the rules somebody else originated. If they’re not doing that, to Hell with them.

            1. Similarly, anyone who doesn’t believe in Heaven is probably murdering people left and right because they don’t have a juicy afterlife to keep them in line.

            2. But those are actually written into the rule.

              Exactly. You can write variation into the rule, which is why “the rule that works best on average,” which is what Peter was discussing, is not necessarily, or even probably, the best rule.

              If we want to make a rule about taking an umbrella when we go out, it will be useful to incorporate varying weather conditions, rather than try to say “always,” or “never.”

              1. I think you are misreading Peter Gerdes. He doesn’t say (hypothetically) that it works best on average, he says that it works best overall. That would mean that it works better than even your more complicated rules. Just because a more complicated rule might work better in a particular case does not mean that it will work better overall. And he gives a reason to be somewhat skeptical of exceptions and the like in his final paragraph.

                1. I don’t think so. Here’s what he writes,

                  summing over all likely constitutions it gives the best consequences even if the application to our specific case might be a bad outlier.

                  Doesn’t “works best overall” mean exactly the same thing as “works best on average?” He wants to sum over all constitutions and see where he gets the highest total (of whatever measure we might imagine). The rule with the highest total is going to have the highest average.

  10. Why do living constitutionalists never argue that all decisions should have the result that provides the maximum amount of freedom possible and the least amount of government power necessary?

    1. Some do.

      Also, this all depends on your definition of freedom.

      1. That’s not what he argues for. That’s not what he argues for at all.

        1. So you believe Breyer’s thesis is for the least amount of freedom and the most possible government?

          Non-originalists are not cartoons.

          1. “So you believe Breyer’s thesis is for the least amount of freedom and the most possible government?”

            Only a complete and utter moron would assume that’s what I believe Breyer’s thesis to be.

            “Non-originalists are not cartoons.”

            I didn’t used to think they were, but seeing your “defenses” has me thinking maybe I was being too generous.

    2. Because that’s the opposite of what they’re trying for. You don’t give unelected tribunals arbitrary power in order to increase freedom.

      1. You don’t give unelected tribunals arbitrary power in order to increase freedom.

        What does being unelected have to do with it?

        Bull Connor and George Wallace were elected.

        Frank M. Johnson and John Minor Wisdom were unelected.

        Which pair did more to increase freedom?

        1. Setting aside Prohibition, which was swiftly repealed in the same way, all the vast expansions of federal power of the 20th century came by way of those unelected rulers.

          Because while being elected is no guarantee you’re a good guy, it does at least place limits on you.

          1. And here I thought those expansions were authorized by Congress and signed by the the President.

            1. The exercises of those expanded powers were, in many cases, achieved that way. But that the powers were expanded was a judicial sin.

              It’s like blowing open a bank vault and robbing the bank. I say you entered the vault using explosives, you deny it, saying you just walked in. But you could only walk in because of the hole the explosives made.

              1. An example would help, because I don’t understand what you are getting at.

                Even if someone blows the door off a bank vault, a robber still has to go in and take the money. If he doesn’t, he’s not a robber at all.

                1. Even if someone blows the door off a bank vault, a robber still has to go in and take the money.

                  He’s saying that Congress and the President would not have been able to walk into the vault if the party charged with guarding the sanctity of the vault had done its duty, but instead that party allowed the door to be blown off.

                  1. Yes. I understand. But then it’s everyone’s fault, isn’t it? Elected officials too are supposed to uphold the Constitution, after all.

                    In fact, I’d lay the blame, not that I share Brett’s view that it’s been all downhill since 1933, but as an abstract matter, much more on the elected officials. The guard shouldn’t fall asleep, but that doesn’t excuse the robber.

                    1. In fact, I’d lay the blame, not that I share Brett’s view that it’s been all downhill since 1933, but as an abstract matter, much more on the elected officials.

                      I guess the point is that such things are expected from politicians. It is the judiciary who is supposed to be high-minded and beyond the influence of partisanship or the lure of pandering or acquiescing to political forces.

  11. Originalism is important precisely because democratic process is a horrifying danger to everyone. If we respected democracy, there would be no need for most of the Constitution.

    1. This isn’t even about the democratic process; In practice, living constitutionalism empowers rulers, not the demos; The amendment process allows the public some input into whether a change is adopted, in that sense it IS democracy. Judicial ‘amendment’ is a circumvention to prevent the public from rejecting amendments that aren’t actually popular.

      Would Roe v Wade have ever stood a chance of ratification? Obergefell? Would the public have ratified an amendment transforming the commerce clause into a general grant of power?

      Living constitutionalism doesn’t actually implement the will of the people, that’s just an excuse for denying the people a chance to say no.

      1. For originalists there is no middle ground – either you are their particular flavor of originalist or you have no limits at all.

        It’s like those Christians who believe athiests cannot have morals.

        The Constitution can be a guide – even a textual guide – without having to bother with deep historical rationalicating.

      2. Huh?

        I thought you hated the “tyranny of the majority.”

        Whatever you think of Roe and Obergefell, claiming that the decisions could not possibly be ratified as amendments is no argument against them.

        1. It’s exactly an argument against them, if living constitutionalism pretends to be a way for the public will to escape the dead hand of the past. They couldn’t be ratified because they weren’t the public will. They were a triumph of raw judicial power over one democratic “NO!” After another.

          1. No.

            You are taken it as a given that the results are not Constitutionally required. But that’s what the whole argument is about.

            The Bellmore Constitution has not yet been adopted by the United States.

            In other words you are assuming your conclusion.

            1. This is the ultimate problem with arguing with living constitutionalists. Having decided that they won’t let words transmit to them meanings they don’t like, they’re unreachable by words. They’ve crawled down the rabbit hole, and can’t be pulled out of it.

              No, the existing Constitution isn’t the Bellmore constitution, I’d have drafted it considerably differently. I think the 17th amendment was a terrible idea, for instance. But that doesn’t lead me to pretend it doesn’t mean Senators get directly elected.

              But, having decided that you’ll assert the Constitution means what you like, you can only assume that other people are the same, and if they say the Constitution means something, it can only be because that’s what they like.

              1. having decided that you’ll assert the Constitution means what you like

                Look in the mirror, Brett.

                And stop with the stupid caricatures.

              2. having decided that you’ll assert the Constitution means what you like, you can only assume that other people are the same

                Your ‘my telepathy indicates your bad faith’ is pretty lame, Brett.

                1. But accusing me of viewing nonoriginalists as cartoons is totally different, right? You are such a clown.

                  1. Because you’ve said nonoriginalists believe things that are cartoonish, jph. I’m not imagining anything – I’m pointing to actual posts you have made.

                    But Brett is explaining what bernard11 really thinks, which is just made up and not from what he’s written.

                    1. Once again, I have to ask, do you actually believe the crap you write or do you know it’s bullshit and just not care?

                    2. Seriously, Sarcastro: When does living constitutionalism ever cough up a meaning the person applying it doesn’t like?

                      Originalists frequently find the Constitution means things they don’t like. I dislike the direct election of Senators. I think the 16th amendment was a terrible idea, too. There ought to be limits on the extent of taxation of income, but unavoidable, I find there aren’t; A 100% tax on income would be perfectly constitutional. I find that the 1st amendment’s establishment clause only prohibits laws having to do with established churches, and I certainly think a more expansive prohibition would be desirable.

                      Where are the cases where living constitutionalists find living constitutionalism forces them to conclusions they don’t like? I’ve never yet seen a living constitutionalist arrive at a result they didn’t like, that wasn’t a case of their using Originalism. Which, yes, living constitutionalists do, when they don’t think they can get away with their own approach.

                    3. I want universal health care, but am pretty sure the Constitution doesn’t mandate that. Or what about how Trump gets to wily-nilly roll back all these great regulations, and yet the Constitution doesn’t step in. Or the BS with Gorsuch, sadly allowed. Addressing global warming, not in the Constitution. Gathering good data on guns before making policy either way, not in the Constitution.

                      Breyer and Kagan ruled that states can opt out of the ACA’s Medicare expansion, though I have no doubt they disagreed with that as policy.

                      If you want outcome oriented, you are not without sin. You have decided that because Roberts didn’t agree with you on everything, he’s not an originalist. Because if there is one thing that originalist commenters here have in common, it’s the belief that they are the true arbiter of the One True Originalism, and all others are not just wrong, but liars who know they are wrong.

                    4. When has John Roberts claimed to be an originalist?

                    5. JUSTICE GINSBURG suggests that “at the time the Constitution was framed, to ‘regulate’ meant, among other things, to require action.” But to reach this conclusion, the case cited by JUSTICE GINSBURG relied on a dictionary in which “[t]o order; to command” was the fifth-alternative definition of “to direct,” which was itself the second-alternative definition of “to regulate.” It is unlikely that the Framers had such an obscure meaning in mind when they used the word “regulate.” Far more commonly, “[t]o regulate” meant “[t]o adjust by rule or method,” which presupposes something to adjust. [Citations omitted.]

                      From here.

                    6. So I guess that makes Justice Ginsburg an originalist too?

                    7. An originalist COTUS doesn’t mandate UHC, but there are ways to get there. First, all we have to do is ratify a treaty requiring it (we’ve actually signed one but haven’t ratified it). There are quite literally no limitations on the scope of treaties (as opposed to Art. I powers), as long as the don’t run afoul of the BoR. Valid treaties become part of “the supreme Law of the Land.” Art. VI, cl. 2.

                      The second is less clear, but an argument can be made. “The Congress shall have Power To … provide for the … general Welfare of the United States.” Art. I, ? 8, cl. 1. Both Madison and Jefferson read this phrase narrowly; Hamilton read it broadly. Hamilton probably had the better of the argument, on the grounds that the people served as an effective firebreak.

                      But yes, the problem with originalism is some originalists.

    2. Could not someone be committed to republican ideals of checks and balances and representation and rights without being an originalist?

  12. Or to phrase the idea more succinctly you might think that originalism is like free speech absolutism. You adopt it for instrumental reasons and you believe god could identify contexts where exceptions would be good but history tells us we are so likely to irrationally believe that our current moral/military crisis justifies exceptions that it would be a mistake to even weigh those concerns against the general free speech rule.

    I don’t find this convincing as to originalism just noting that it’s a coherent position

  13. Prof Somin states:

    Finally, some originalists argue that we must obey the original meaning because that is the only way to adhere to the “rule of law.” The rule of law means different things to different people. But, at least on several standard conceptions of it, the relationship between the rule of law and originalism is merely a contingent one. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning.

    And puts this into the “Intrinsicist” basket of justifications for originalism. In fact it is both an intrinsic justification and an instrumental one. This is similar to textualism wherein it allows the average Joe know his rights and obligations are static until they are explicitly changed.

    1. One merely need to look at something like the 4th Amendment to find an easy example. Lets say I am a criminal walking around with my criminal papers and effects in 1924, and the police stop me on the street and without a warrant seize and search my briefcase. I go to court and easily win my case. However, a few weeks after I win, I decide to take my criminal briefcase with me in my brand new motorcar! These same overzealous police again seize my case without a warrant. “Fools you’ve done it again” I say. But then, an illogical and non-originalist decision comes down: Carrol v. United States and the police have been granted a victory I could never have anticipated. The same briefcase belonging to the same man on the same street, two different results because I stepped into a motorize vehicle.

  14. I found delightful Prof Coad’s line about non originalist judges having to weigh carefully in the balance the possibility that their deliberately choosing to ignore an Original Interpretation amendment to the Constitution might throw into doubt their commitment to follow other bits of the Constitution. Yeah, I guess it might !

    Cutting to the chase, we know that legal sophists can always sophist their way round anything, however clear. So we need to call in the help of Ludwig von Mises. We need to focus on “human action”, not merely human words.

    1. So here’s my Original Interpretation amendment.

      1. The Constitution, including Amendments thereto whether currently operative or adopted in future, shall be construed and interpreted according to the original public meaning of the text.
      2. Other, secondary, principles of construction or interpretation may not be applied unless the rule in 1 above is ineffective to resolve the question at issue
      3. Any Judge or Justice who renders an opinion in conflict with 1 or 2 above shall immediately forfeit all constitutional rights
      4. No person may be arrested, indicted or tried for any offense, whether under federal or state law, carried out against such a Judge or Justice at any time after he has rendered such a judgment as is mentioned in 3 above
      5. To the extent that there is any contradiction between this Amendment and any other part of the Constitution and its Amendments, this Amendment shall take precedence.

      A non originalist judge may, of course, feel that a case ought to be resolved using non originalist principles. But he probably won’t resolve it that way.

      1. Even in jest (I hope), the willingness for lay-originalists to endorse vigilante justice or ideological impeachments makes one wonder about how much their goals are liberty or republic-preservation based.

        1. Vigilantism connotes unlawful violence. My proposal is outlawry, which makes any violence lawful. (And of course the outlaw judge may suffer only loss of property rather than violence. )The problem is that the judicial power is unaccountable. Sure there is impeachment, but that is practically impossible where a substantial section of the body politic supports judges ignoring the law. But there are good reasons to avoid making judges accountable to either of the other two branches of government. So what to do ? My modest proposal is to strengthen a judge’s internal resistance to temptation. A judge can be killed or beaten up now. The question is how safe is the perpetrator from legal retribution ? Fairly unsafe. So the judge in turn is quite safe. A judge who obeys the law requiring him to stick closely to the original meaning of the text retains the same protection as now. But a judge who chooses to go out on a limb risks his fellow judges, who do choose to stick to the text, accepting that he has made himself an outlaw. In turn a retributive perpetrator risks punishment unless he is quite confident that the judiciary will agree with his estimation that the judge has made himself an outlaw. My proposal is therefore a careful balance. To make judicial popinjays police their own proclivity to politicking from the bench by shying away from the risk of outlawry, without handing the power to remove them to a bunch of politicians.

          1. Even satirically, I don’t get the point you’re trying to make.

            It all sounds ghoulish to me.

            1. The point is that the rule of law is a good thing, and it requires judges who are prepared to abide by it in their rulings, regardless of their personal policy preferences. But if a judge won’t do that, what’s the remedy ? There’s got to be a remedy, otherwise there’s no point having elections.

              The remedies currently in the Constitution are :

              (a) reversal by a higher court
              (b) impeachment

              (a) is ok, but any significant number of rogue judges can clog up the appeals courts. As Stephen Reinhardt said – they can’t catch them all. And (a) can’t apply to SCOTUS
              (b) doesn’t work because one of the main parties agrees with judges ignoring the law so long as it helps their policy preferences

              So there’s no remedy in practice. So judges are free to ignore the law. That’s still OK if in practice judges consciences prevent them doing so. But they don’t. Indeed as Coad’s paper makes clear – large chunks of the legal academy openly advocate judges making up the law according to their policy preferences. Ignore away, with a clear conscience.

              You got a better remedy ?

              Quis custodiet ipsos custodes ? I say, we the people.

              1. one of the main parties agrees with judges ignoring the law so long as it helps their policy preferences

                Of course conservative judges adhere strictly and unquestionably to the law. Fortunately for them the law perfectly matches conservative policy preferences, so they are in no danger.

                is that your point?

                1. Of course conservative judges adhere strictly and unquestionably to the law

                  I detect a sarcastic note. But as I said below “Even the textualists find it hard to submit to their own rules.”

                  All men are weak. Even some women too, I understand. Some men are naturally weaker than others, but no one is perfect. Which is why a judge needs his spine stiffened by external support.

                  Conservative judges and legal theorists write that a judge must submit to the law he finds, and that judicial discretion is an unavoidable evil, not a good. That provides some external stiffening. If you are taught not to put your hand up a girl’s skirt uninvited, the teaching, and the attendant feelings of guilt, may stay your hand when temptation is before you. Sometimes you will fail to resist temptation, sure. Sometimes you may overenthusiasticly perceive an invitation that was never there. But you have help from your doctrine. But if you are taught ? go for it ! grab ’em by the whosit ? then doctrine will never stay your hand. Such is the pitiable condition of liberal judges. Their doctrine tells them to go wherever their inclination leads.

                  Of course my modest proposal is designed to provide extra stiffening, apart from doctrine. Human nature indicates that self interest is a wonderful teacher.

          2. Even satirically, I don’t get the point you’re trying to make.

            It all sounds ghoulish to me.

  15. Originalism is younger than Kim Kardashian, has fewer followers, and makes less sense.

    1. …said the guy who believes that a god had ot sacrifice himself to himself to change a rule he made himself.

  16. Why can’t everyone give the arguments in favor of their preferred method of interpretation. Say what you support and how it works and what the implications are.

    In particular, give examples of outcomes you don’t like which are nonetheless produced by your method. If you can’t think of any, that would be quite a coincidence, wouldn’t it?

    1. This entire post is an attack on a strawman. While it is true that the law is not always clear, it generally is. The actual problem with clarity is not that a judge will determine an innocent person guilty, but rather that they have no choice but to do so because everyone is guilty.

  17. I strongly disagree. An instrumentalist defense negates the value of originalism in that it subjugates soundness and consistency of process to subjectivity based on outcomes.

    Ultimately, Somin’s entire discussion hinges on “better outcomes” or “lesser evils.” I don’t think that’s a sound foundation on which to build a constitutional interpretive model; it’s merely a utilitarian evaluative method for their effects.

    Even in a situation where strict originalism produces injustices, the design of our government is that the will of the people would move the legislature to change the text, rather than have it presumptively rewritten from the bench.

    What the intrinsic defense provides is consistency, and an impetus for the legislative process to function. The instrumental defense is merely a veneer of deference until one doesn’t like the outcome, at which point utilitarianism demands a rejection of originalism. That we live in a fractious and divided society implies that most every decision will have its attackers who desire a living constitutional interpretation for that particular evil, relegating originalism to its value in the eye of a given beholder.

    1. Don’t look now, but it looks to me like you’re making an instrumentalist defense of intrinsicism…

      1. Not at all. I view consistency and transparency as worthy ends unto themselves, regardless of utilitarian outcomes.

  18. The proposed amendment would seem to do away with “stare decisis,” too. What reason is there to abide by any previous decision by an earlier court?

  19. Is non-originalism even coherent? It says that we are governed by some words that can be given any meaning whatsoever in the sole discretion of the judiciary, without oversight by Congress or the people. But what is the source of the judiciary’s authority? If the meaning of the words in the Constitution is not fixed then why is that meaning not up to Congress or the President? Is there some special inviolable “originalist” part of the Constitution that has a meaning that cannot be modified except by amendment, and which gives absolute final authority to the judiciary? How do we detect this?

    1. You wouldn’t expect non-originalism to be coherent, any more than non Judaism or non Marxism. It’s not a thing, it’s the set of every doctrine (and none) that isn’t originalism. But I know what you mean – is there actually a semi-coherent thing that lies behind purposivism or active liberty or living constitutionalism, or are they all :

      (a) mere smokescreens for “absolute judicial discretion” (the knave theory) or
      (b) incoherent mush invented by well meaning folk who can’t see that their conconctions amount to “absolute judicial discretion” (the fool theory)

      And I suspect the answer is some folk are well meaning and very confused and some are it-would-be-politically-imprudent-for-me-to admit-what-I-really-thinkists. And what they think is that “I am a wise ruler and should have absolute power.”

      1. The interesting intellectual question is – is it possible to make living constitutionalism if not coherent then to some extent logically consistent, and bounded, in the sense of presenting actual borders to judicial discretion. And I suspect it is, though I don’t think folk have made much progress in that direction. So you might come up with a variant of living constitutionalism with an actual hard and fast rule that – say – the constitution must never be interpreted so as to prevent or restrict the government from pursuing policies to help the poor, the disadvantaged, women, and non whites. It’s a rule. It does bind the discretion of judges. Sure there’ll be ambiguities and uncertainties, but so there are with the meaning of the text.

        I doubt that much progress will ever, in fact, be made on this because judges hate having their hands tied. And that’s hate with a capital “over my dead body.” Even the textualists find it hard to submit to their own rules, and textualism (inc originalism) is way more analytically developed than living C. But because I’m a kind hearted person, who likes to think the best of people, I prefer to regard most living C pushers as fools rather than knaves.

    2. “Is non-originalism even coherent? It says that we are governed by some words that can be given any meaning whatsoever in the sole discretion of the judiciary, without oversight by Congress or the people.”

      The straw man to end all straw men.

      1. In what way is this a straw man? Do you object to “any meaning whatsoever”? Given that we agree that we’re not using the original meaning of the words, do you claim that there is nevertheless some aspect of original meaning that the judiciary is tethered to? Is there some boundary beyond which we cannot go? How does this work?

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