Christopher R. Green (University of Mississippi - School of Law) has posted Originalism and Knowledge: How to Think about Indeterminacy, Activism, Vagueness, Executive Review, and Precedent on SSRN. Here is the abstract:
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Constitutional theory is bedeviled by five persistent controversies: (1) what to do when historical evidence is difficult to assess and does not readily resolve particular disputes; (2) how to define judicial activism and decide how much of it is proper; (3) how to deal with vagueness and borderline cases; (4) how to understand the relationship of judicial review and executive review; and (5) how to reconcile interpretive theory with possibly-erroneous precedent.
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This article contends that these problems can be solved, or at least framed so a solution is possible, by understanding the relationship of knowledge to the Constitution. I defend three principles, all of which can be used by either originalists or non-originalists. First, assertions about the Constitution require knowledge; agnosticism should be the prelude to deference. Second, knowledge about the Constitution, like knowledge about anything, requires more evidence if the stakes are higher; the bigger deal that judicial review is, the more certainty it demands. Third, evidence relevant to the Constitution’s requirements should not be ignored by those in a position to speak about those requirements.
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These three principles can put our five controversies on the road to solution: (1) The independence of these knowledge-related principles from the relationship of the Constitution to history explains why adjustment of our attitude toward originalism is not a sensible response to constitutional ignorance. (2) Improper judicial activism is using too low a standard for knowledge or speaking despite agnosticism, while improper judicial passivity is using too high a standard for knowledge or suppressing evidence that could help meet that standard. (3) An epistemic view of vagueness combined with these principles means staying far enough away from uncertain constitutional boundaries given the current stakes. (4) Principles of restraint govern legislative and executive action as well as judicial action, but the stakes may differ. Enforce-but-don’t-defend policies like the Obama Administration’s approach to DOMA litigation can thus sometimes be justified if executive review requires more evidence than judicial review. Further, an executive-review burden of proof for means that in cases of insufficient certainty, executive officials must enforce laws whose constitutionality they doubt. Such a “not always my job to enforce the Constitution” rationale passes the constitutional buck to Congress. (5) If interbranch constitutional buck-passing is legitimate, there is no reason in principle why a later Court cannot similarly pass the buck to an earlier version of itself. Limits on executive review thus provide a model for reconciling entrenched precedent with theories of interpretation labeling those precedents as erroneous.
