Michael Dorf has a wonderful post entitled Stare Decisis and Originalism over at Dorf on Law. The gist of his elegant and clever argument is in the following passage:
The problem for originalism is not that adoption of originalism would result in the reinstatement of Jim Crow. The very sacrosanctity ofBrown reflects the fact that--despite ongoing racial inequality across multiple dimensions--no serious figure in American public life advocates a return to Jim Crow.
The problem that Brown and/or other sacrosanct precedents pose is not one of preserving those precedents but of failing a test. The process of deciding upon the "correct" interpretive methodology proceeds, like many intellectual tasks, via a reasoning process that goes back and forth between general principles and concrete applications until one reaches reflective equilibrium. But if Brown and/or some other precedents are right "because Brown" and/or "because X, Y, and/or Z," that means that any interpretivte approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough. Indeed, it's not the point of the exercise at all.
This is an important point and it reveals that what is sometimes called "The Canonical Cases Objection to Originalism" is ambiguous. One objection does take the form that Dorf disclaims. It goes something like this:
Originalism is unacceptable, because if it were now accepted and rigorously followed, it would lead to a reversal of Brown v. Board.
Dorf makes it clear that he is not making this objection, but we should also be clear that others do make an objection of this kind.
Instead, Dorf is making a different objection, the essence of which is reflected in the underlined passage quoted above and restated in slightly different terms here:
Originalism is unacceptable, because if it had been accepted at the time of Brown, then it would not have actually produced Brown.
I have a series of questions about Dorf's formulation of the argument. Of course, he is under no obligation to answer these questions, but I will try to show why these questions are important:
The first question grows out of the precise language that Dorf uses to express his argument:
[A]ny interpretive approach that is acceptable must actually produce Brown and/or the other precedents.
Dorf uses the word "actually" which is ambiguous. One of the senses of "actual" (perhaps the most common sense) is that it is what philosophers call a "modal indexical." Using possible worlds semantics, we can put it this way: of all the possible worlds, there is one world that we actually inhabit and that is the "actual" world. This sense of "actual" is an indexical just as "here" and "now" are indexicals. "Here" changes its referent depending on where you are when you say, "It is warm here." As I am typing, "here" is somewhere in New Jersey--as I am on the Acela returning from a workshop at Brooklyn to Washington DC. But I don't think Dorf means "actual" in this sense. Dorf's point is about a possible world in which originalism was followed by the Supreme Court in 1954: that is a counterfactual though experiment, not a question about the actual world. Neither originalism nor any other theory of constitutional interpretation can actually produce Brown now--because Brown is the name of a case that actually did occur in the past but is now over and done with.
So this leads to my first question:
Question One: Is the test that your propose a counterfactual (or hypothetical) test (would originalism counterfactually have produced Brown) or is your test about the actual present and future (will originalism produce Brown today)?
Dorf might answer this question in a variety of ways, but we need to know the answer to this question before we can actually apply his test.
There is a second and very important ambiguity in Dorf's formulation of his argument. Here it is again, but with a different idea underlined:
[A]ny interpretive approach that is acceptable must actually produce Brown and/or the other precedents.
Dorf uses the modal verb "must" to express his test. Like the adjective "actual," the verb "must" expresses a modal concept that is connected to the ideas of possibility and necessity. Usually, "must" is used to express necessity of some kind. If this is what Dorf meant by "must," then we can paraphrase his test as follows:
For an interpretive approach, A, to be acceptable, the following statement must be true: Necessarily, if A had been followed by the Supreme Court, then the Supreme Court would have produced Brown v. Board.
There are many interesting subquestions here that I will pass over. For example, obviously, it can't be that producing Brown v. Board means producing the exact same opinion: an originalist Brown would have had different reasoning. But let's not worry about questions of that sort for now. Instead, I want to observe that Dorf might have meant something other than "must" in the modal sense of necessity. Would originalism pass Dorf's test if it "likely" would have produced Brown? Or "plausibly" would have produced Brown? Or weaker still, if it would have been possible (given some set of assumptions about the relevant historical facts and the composition of the Court) to produce Brown using Originalism?
Question Two: What does "must actually produce Brown" mean? Does it mean that the theory must guarantee Brown? Or is something else sufficient? And if so, what?
Savvy readers will recognize that Dorf's answer to Question Two is likely to have big implications for constitutional theory. That is because we cannot evaluate originalism in a vacuum--especially if our criterion for evaluation is results oriented in the way that Dorf's proposed test is. Failing Dorf's test is only a vice of originalism if there are alternative methodologies that satisfy the test.
This point is particularly important because it is quite clear that many of the major alternatives to originalism do not as a matter of necessity produce the outcome in Brown. Consider two important forms of nonoriginalism: (1) common law constitutionalism (e.g. as defended by David Strauss) and (2) the multiple-modalities or pluralist view (e.g. as defended by Phillip Bobbitt).
Common-law constitutionalism as an interpretive methodology is consistent with many possible outcomes in Brown; indeed, it seems most consistent with a more gradualist approach that would not have overruled Plessy but which made it more difficult to meet the separate but equal test.
Bobbitt's theory is an even clearer case. Let me stipulate an altered version of the modalities: (1) text, (2) historical practice, (3) constitutional structure, (4) practicality, and (5) constitutional values. (I know that is not Bobbitt's list.) We need to assume arguendo that text does not favor Brown: if the public meaning of the text leads to Brown then Dorf's objection doesn't get off the ground to start with. Historical practice seems to disfavor Brown. Constitutional structure seems somewhat indeterminate, although one might make structural arguments on both sides. Practicality did not favor Brown. Of course, the constitutional value of equality does favor Brown (and let's assume that there are no contrary constitutional value arguments). It seems clear that the complex argumentative practice of constitutional law as limited by the permissible modalities, does not guarantee Brown.
This leads to my third question:
Question Three: Given the answer to Question Two, what alternative interpretive methodologies do meet your test? (And given the limits of the blog post, one example that Professor Dorf is willing to defend would suffice.)
Question Three illustrates an important conceptual point about the structure of debates about interpretive methodology in constitutional theory. Originalism (and every other interpretive methodology) can only be evaluated in comparison to a set of alternatives. Different tests (like Dorf's test) will apply differently to the various forms of originalism and nonoriginalism. To reject originalism, there must be at least one nonoriginalist interpretive methodology that is better than originalism.
This means that Dorf's proposed test does not constitute an objection to originalism unless and until we become convinced that the theories that pass his test are themselves plausible interpretive methodologies. And even then, the test may not be decisive. That is because some of theories that past the Dorf test will have other defects that make them unacceptable as interpretive methodologies. Once Dorf clarifies his position, it might be the case that failing his test provides a pro tanto reason to favor one theory over another, but it is hard to see how it could provide a decisive reason before evaluation of the other normative considerations that bear on the question as to which interpretive methodology is best. If this analysis is correct, then it has important implications for the role of the Canonical Cases Objection in debates about originalism. The objection is sometimes presented as a "trump card" (decisive reason), but in the form presented by Professor Dorf, it seems difficult to see how that can be the case.
Here's hoping that Professor Dorf answers the three questions! Fingers crossed.
