This is the tenth and final post on the "great debate" between originalists and living constitutionalists. In this post, my aim is to consider a few of the objections to the Constraint Principle. Many of the ideas in the series are presented in greater depth in:
For a very short statement of the case for originalism, see:
This post addresses the following questions:
- How can originalism develop a rigorous methodology?
- How can the intellectual infrastructure of originalism be transmitted to constitutional actors?
- How can originalism deal with nonoriginalist precedent and practice?
- How can the judicial selection process produce originalist judges with the virtues of judicial integrity and lawfulness?
The other posts in this series so far are as follows:
The post continues after the break.
How can originalism develop a rigorous methodology?
One of the principal obstacles to the implementation of originalism is the lack of a fully developed methodology. Lawyers are trained to do research that can be used to support an argument for a client. Even objective writing is influenced by the forensic nature of legal practice: an "objective" memo considers both sides of an argument, but it is rare for lawyers to step outside of law as a argumentative practice and engage in a neutral and dispassionate "search for truth." For this reason, "originalism" can become "law office history" that cherry picks the most obvious sources. The adversary system assumes that the clash of arguments will enable the truth to emerge, but adversarial cherry picking is not a good method for determining the original public meaning of the constitutional text.
For this reason, originalist scholars are working in various ways to develop a rigorous originalist methodology. For a brief overview, see my essay Originalist Methodology, forthcoming in the University of Chicago Law Review. One of the most exciting developments on the methodological front has been the discovery by legal scholars of corpus linguistics--the use of big data for lexicographical research. The more traditional approach of immersion in the historical materials in order to acquire a deep understanding of the semantics and pragmatics of the historical period provides an alternative approach that can be combined with corpus techniques.
The goal of originalist methodology should be to produce methods that produce intersubjective agreement on the communicative content of the constitutional text. Research should be replicable, data sources should be fully disclosed, and cherry picking should simply be eliminated in scholarly originalist research.
How can the intellectual infrastructure of originalism be transmitted to constitutional actors?
Even if all originalist scholars employ rigorous research methods and develop the most sophisticated version of originalist theory, that will not suffice to create a genuinely originalist constitutional practice. Ideally, this would require the incorporation of originalism (and its statutory sibling "plain meaning textualism") into law school curriculum. Originalist methods should become a standard part of every course that covers constitutional issues--most obviously, the courses in constitutional law, the first amendment, equal protection and so forth, but also in other courses with substantial constitutional content, including criminal procedure, civil procedure, property, and especially legal writing and research.
If transformation of the law school curriculum is that long term goal, how can scholars, lawyers, law clerks, and judges be trained in the short term? At most American law schools, originalism and plain meaning textualism play almost no role in the law school curriculum. Students report that originalism was never mentioned in their constitutional law courses or that it was discussed briefly for a few minutes in a dismissive and critical way. Until this changes, an educational infrastructure for originalism will have to be built outside the law schools. One such effort is the "Originalism Boot Camp" at Georgetown University Law Center; that program is targeted at law students and recent graduates. Similar programs should be developed for lawyers and judges.
How can originalism deal with nonoriginalist precedent and practice?
The implementation of originalism faces another obstacle. In many areas of constitutional law, there have been substantial departures from original meaning. What should originalist judges do when their is a conflict between settled precedent and original meaning? Most originalist scholars believe that nonoriginalist precedent must give way in the long run, but it would be impracticable and harmful to attempt to overturn every nonoriginalist precedent in an originalist "big bang" over a single superterm of the Supreme Court.
One way to address the problem of precedent would be through a multistage sequence along the following lines:
Stage One: Nonoriginalist precedents are frozen in place. When new issues arise, originalist interpretations and constructions prevail.
Stage Two: Nonoriginalist precedents are narrowed at the margins. Originalist interpretations and constructions begin to substitute for nonoriginalist ones.
Stage Three: The most egregious nonoriginalist precedents are overruled and originalist interpretations and constructions are substituted.
Stage Four: Originalism is fully implemented.
Most originalists expect that the implementation of originalism will prompt some constitutional amendments. This seems especially likely at Stage Three, when "the handwriting will be on the wall."
How can the judicial selection process produce originalist judges with the virtues of judicial integrity and lawfulness?
Originalism can only work if the judicial selection process produces originalist judges with the virtues of judicial integrity and lawfulness. Obviously, originalism is going nowhere if there are no originalist judges. But simply professing allegiance to originalism and being trained in rigorous originalist methodology is not enough. No theory or methodology can implement itself. Originalism, like any other constitutional theory, can be used as a cover for ideological judging. For this reason, the successful implementation of originalism requires virtuous judges; in particular, the judicial selection process must select for the virtues of integrity and lawfulness. Good originalist judging requires that judges care more about fidelity to the constitutional text than they care about the outcomes that they would prefer.
This means that the successful implementation of originalism will require that Presidents and Congress come to see that originalism is preferable to the selection of ideological judges. How might that happen? The current downward spiral of politicization in the judicial selection process provides a glimpse of a possible future in which both parties come to see that the politicization of the judiciary can undermine the rule of law in ways that progressives, liberals, libertarians, and conservatives can agree are very harmful indeed. Every society requires dispute resolution, and pluralist societies have a special need for authoritative resolution of controversies about fundamental rights and the structure of government. The bottom of a downward spiral of politicization is a thoroughly ideological process of judicial selection that corrupts the judiciary destroying its legitimacy. A constitutional war of all against all is in no one's interest. The hopeful scenario is that the relevant political actors see the bottom of the spiral before it arrives, and reach a grand compromise that respects the Constraint Principle and elevates fidelity to law over the instrumental use of law to achieve ideological goals.
My goal in these ten posts has been to provide an overview of the case for originalism. The core of that case is contained in two claims:
- The Fixation Thesis: The communicative content of the constitutional text is fixed at the time each provision is framed and ratified.
- The Constraint Principle: Constitutional practice should be constrained by the communicative content of the text; at a minimum, constraint requires consistency with the text.
The Fixation Thesis should not be controversial. When we interpret old documents, we use the conventional semantic meanings of the words and phrases that were in effect at the time the document was written.
The Constraint Principle makes a normative claim for which two clusters of pro tanto reasons were provided: (1) the Constraint Principle better achieves the rule of law than does living constitutionalism, because (a) it better serves the rule of law values of stability, predictability, certainty, consistency, and publicity, (b) it better prevents a downward spiral of politicization of the law, and (c) it avoid the great evil of judicial tyranny; (2) the Constraint Principle better achieves legitimacy than does living constitutionalism, because (a) it provides greater democratic legitimacy than does a committee of nine officials with life terms who are unconstrained by the text, (b) it avoids the transparency problem associated with most forms of living constitutionalism, and (c) it limits judges to their legitimate judicial role.
For originalism to be meaningfully different than living constitutionalism, it must be the case that the original meaning of constitutional text is not indeterminate and that the degree of underdeterminacy is not so substantial as to permit almost all living constitutionalist results. In fact, the original meaning is quite determinate with respect to the hard-wired constitution (the basic plan of government) and even seemingly open-textured provisions such as the Equal Protection Clause are far more determinate than many nonoriginalists assume.
One of the themes of these posts is that the "great debate" is complex. This should come as no surprise. Originalists and living constitutionalists have been arguing with each other and among themselves for decades. Nonetheless, progress can be made in this debate. The aim of this series of posts has been to show that progress is possible, if originalists and nonoriginalist living constitutionalists are willing to debate the issues on the merits, with an open mind and a dedication to scholarly rigor.