Barnett's post deals with an idea advanced by Dorf that might be called the Legitimation of Ideological Originalism Thesis. I am going to provide a precise statement of the thesis in what I understand to be its best form. This may not be the precise thesis that Dorf articulates, but it is an important thesis nonetheless.
The Legitimation of Ideological Originalism Thesis: Although originalism in theory can adhere to the requirements of the Constraint Principle and therefore translate the original public meaning of the constitutional text into originalist doctrines and decisions, the practical effect of originalist theorizing is to legitimate ideological originalism, understood as the masking of decisions motivated by ideology that depart from original meaning (in a substantial range of cases) as based on an ideologically neutral method of constitutional interpretation and construction.
This argument becomes especially important if we accept a second thesis advanced by Dorf. Again, I will formulate a precise version which may not be equivalent to the version that Dorf himself articulated:
The Substantial Equivalence of Originalism and Living Constitutionalism Thesis: Although the academic version of Public Meaning Originalism and nonoriginalist living constitutionalism may produce different doctrines and decisions at the margins and on unimportant issues, the two approaches can converge on almost all of the important constitutional issues, such as the right to abortion, constitutional protection against gender discrimination, gay marriage and so forth.
Either thesis alone has important implications for academic originalism, but if the two theses are both true, they work together to produce a very interesting argument against the scholarly enterprise of developing a theory of originalism--even if that that theory is the best available theory of constitutional interpretation and construction. In fact, it would justify a "noble lie" approach to constitutional theory, where scholars would argue that Public Meaning Originalism is false, when they in fact believe that it is true, because the effects of proclaiming the truth would be pernicious. Scholars who believe in Public Meaning Originalism should refrain from legitimizing originalist theory, because this would constitute "material support" for ideological judging that will produce results that are wrong from the perspective of Public Meaning Originalism; not only are these results wrong, but they are also very bad.
It is refreshing and brave of Professor Dorf to bring out points that seem to imply that there is a case for scholarly dishonesty in such a clear and eloquent fashion. This point of view is "in the air" and, in my opinion, it is much better to have it brought out in the open and debated. The alternative is to attempt to "silence" originalist theorizing using a combination of backroom persuasion and the raw application of academic power to marginalize originalist theorizing. The possibility of such silencing is not merely academic. Explicit comments along these lines have been made in connection with faculty appointments and even by students who are evaluating originalist scholarship for the law reviews.
Let me be clear, Dorf himself does not advocate a noble-lie approach. The closest he comes is in this statement: "The stakes are high because academic originalism--even if through no fault of academic originalists--legitimates reactionary jurisprudence." Once again, I will formulate a precise version of a position that extends Dorf's idea beyond his explicit statements (and likely beyond what he would say):
The Responsibility of Constitutional Scholars Principle: Constitutional scholars should formulate their publicly accessible statements about constitutional theory so as to take into account the legitimating effects of such statements on constitutional practice; if scholarly theorizing about originalism would legitimate pernicious ideological judging disguised as originalism, then scholars should refrain from such theorizing and disavow originalism, even if they believe that originalism is the correct constitutional theory--subject to the proviso that private discussions among scholars about originalism do not violate this principle, so long as they are not published or distributed in ways that significantly affect constitutional practice.
There is much to think about here, and the following thoughts are tentative. Much more work would need to be done to develop a fully theorized response to Dorf's important ideas. With that caveat in mind, let me offer the following thoughts:
- The Responsibility of Constitutional Scholars Principle strikes me as pernicious and directly contrary to what we might call the Value of Academic Integrity. As I understand academic integrity it requires scholars to "speak the truth"--even though scholarly truths may be distorted by others. This is important for many reasons. Truthfulness is a virtue, and the virtue of truthfulness is especially important for scholars. Academic institutions, especially research universities, have a social obligation to pursue the truth. Moreover, the Responsibility of Constitutional Scholars Principle seems likely to lead to some very bad consequences for academic integrity in the long run. It is difficult to conceal the operation of such a principle from outsiders. Individuals move in and out of the academy. Once it becomes known that scholars are bending the truth for ideological reasons, political actors who disagree with the dominant academic ideology will have good reasons to attack the independence of academic institutions. Reasonable persons can differ in their judgments about the likelihood of such attacks, but in my view this concern is real and substantial.
- Professor Dorf originally formulated this idea in a review of books by David Strauss and Jack Balkin. What I call the Substantial Equivalence of Originalism and Living Constitutionalism Thesis is especially plausible in the case of Balkin's version of Public Meaning Originalism, which Balkin calls "living originalism" or the "method of text and principle." My sense is that some of Balkin's views about the original public meaning of particular constitutional provisions are outliers among public meaning originalists. Moreover, I do not think that even Balkin would accept the Substantial Equivalence Thesis. This means that many public meaning originalists will not agree that their abandonment of originalism would have no practical effect, because nonoriginalist living constitutionalism produces the same results as public meaning originalism. Yesterday, I posted The Case for Originalism, Part Seven: Underdeterminacy and the Construction Zone, which provides specific examples the bite of Public Meaning Originalism. In some cases, the differences between the results produced by Public Meaning Originalism are progressive; in other cases, these differences are conservative or libertarian.
- Moreover, I have doubts about the empirical assumptions that underlie the Legitimation of Ideological Originalism Thesis. First, I do not think it can be taken for granted that originalist judges are insincere and that their decisions are in fact driven by ideology. This assumption raises large and complex empirical questions. I see no empirical evidence that human nature is such that humans are incapable of rule following and nonideological behavior in general. And I do not think that the case has been made that the actual judges who profess a commitment to originalism are actually corrupt ideologues. Quite the contrary, I believe that most originalist judges are sincere and that they are willing to following originalist reasoning to results with which they disagree from an ideological perspective. Nonetheless, originalist judging tends to be inconsistent for several reasons, three of which are particularly important: (1) most originalist judges are also committed to a substantial role for precedent, (2) the Supreme Court has never had more than two originalists and judges on collegial courts must write compromise opinions, and (3) in an adversary system, most originalist judges will not write originalist opinions if none of the parties make originalist arguments.
- There is another empirical assumption underlying the the Legitimation of Ideological Originalism Thesis: this thesis assumes that the legitimating effect of originalist theorizing is substantial. I agree that scholarship can have long range effects on constitutional practice; for example, I believe that progressive constitutional theorizing did in fact legitimize nonoriginalist living constitutionalism over a period of decades. I am doubtful, however, that there is a substantial short range effect. Moreover, it seems likely that theorizing about Public Meaning Originalism in the academy can delegitimate ideological decisionmaking that is disguised as originalism. In fact, it seems to me that that this kind of internal critique may well be more effective than an external living constitutionalist critique.
One final observation, in my opinion the ideology critique of originalism rests on the assumption that Public Meaning Originalists lack a rigorous methodology that provides objective and intersubjectively verifiable standards for rigorous originalist scholarship. Although I believe that the best contemporary originalist scholarship is in fact both rigorous and subject to replication, I agree that much more work needs to be done by originalists to develop a full account of originalist methodology and a set of scholarly standards and practices to implement that methodology. I have attempted to make a start on these issues in my essay, Originalist Methodology.