This is the ninth in a series of posts 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:
The Constraint Principle: Original Meaning and Constitutional Practice
For a very short statement of the case for originalism, see:
This post addresses the following questions:
- What is the method of pairwise comparison?
- Why should nonoriginalists be upfront about their alternative to originalism?
- How can the "great debate" proceed given the necessity of pairwise comparison?
The other posts in this series so far are as follows:
The Case for Originalism, Part One: Framing the Debate
The Case for Originalism, Part Two: Methods of Justification
The Case for Originalism, Part Four: The Fixation Thesis
The Case for Originalism, Part Five: The Argument for Originalism from the Rule of Law
The Case for Originalism, Part Six: The Argument for Originalism from Legitimacy
The Case for Originalism, Part Seven: Underdeterminacy and the Construction Zone
The Case for Originalism, Part Eight: Some Objections to the Constraint Principle
The post continues after the break.
What is the method of pairwise comparison?
Sometimes the debate about originalism is conducted by considering originalism in isolation, without asking the question, "What is the alternative to originalism?" That way of proceeding is obviously flawed. Even if originalism is imperfect, it nonetheless should be adopted if the alternative is worse. One way of proceeding is to develop a characterization of the constitutional status quo, and then compare originalism to that. In these posts, I have argued that Constitutional Eclecticism is that status quo, and then proceeded to do a baseline comparison of originalism to eclecticism. This way of proceeding allows us to develop the basic arguments for originalism, but it is not sufficient: originalism should also be compared to the best forms of nonoriginalism--not just the form that happens to be the constitutional status quo.
But how do we do that? This bring us to the method of pairwise comparison. Each of the major forms of nonoriginalism can be compared to a particular form of originalism. Even this approach requires considerable simplification. Every nonoriginalist has their own form of nonoriginalism, but we cannot hope to do pairwise comparisons with every variation; for this reason, we need to group forms of nonoriginalism into families. I have suggested that the following alternatives should be considered. Brief descriptions were offered in the first post in this series. Here are the labels: (1) Constitutional Pluralism, (2) Moral Readings, (3) Common Law Constitutionalism, (4) Popular Constitutionalism, (5) Multiple Meanings, (6) Supreme Court as Superlegislature, (7) Thayerianism, (8) Constitutional Antitheory, and (9) Constitutional Rejectionism. Some of these nonoriginalist theories have significant subtypes. For example, Thayerianism comes in a constrained version (Congress considers itself bound by the Constitution), an unconstrained version (Congress itself makes the Constitution via statutes), and a representation-reinforcement version (like Carolene Products footnote four).
The method of pairwise comparison requires that public meaning originalism be compared to each alternative, one at a time. Of course, this will take time as a full and complete comparison with each alternative would require a long law-review article or a short monograph. This means that the process of pairwise comparison will require both a divisions of intellectual labor and a substantial number of years.
Why should nonoriginalists be upfront about their alternative to originalism?
The aphorism, "It takes a theory to beat a theory," is famous in the legal academy. For an explanation, see Legal Theory Lexicon 053: It Takes A Theory To Beat A Theory. Justice Scalia famously argued that nonoriginalists must offer some alternative to originalism. Unwisely, he suggested that there were no serious alternatives, but his basic point remains. You can't beat originalism with nothing!
Some nonoriginalists may object to the method of pairwise comparison. For example, they might say something like the following. It does take a theory to beat a plausible theory, but originalism is so implausible that it is not worth discussing. This objection might have held water in the early 1980s, but it is now clear that the case for originalism is sufficiently strong that the not-worth-discussing objection will not suffice.
There is another reason that nonoriginalists should defend a particular alternative to originalism. Many of the standard arguments for and against originalism are inapplicable when specific alternatives are considered. For example, the objection that originalism does not guarantee the outcome in Brown v. Board of Education cannot easily be made by a Common Law Constitutionalist, since there was a very strong common-law argument for upholding Plessy v. Ferguson. On the other hand, Brown sits well with the Moral Readings approach. Likewise, the democratic legitimacy argument for originalism works very well against the Superlegislature view, but it does not provide a good argument against the unconstrained version of Thayerianism.
If we simply debate originalism without considering alternatives, we invite conceptual confusion. Hence, there is a very good reason for the method of pairwise comparison.
How can the "great debate" proceed given the necessity of pairwise comparison?
Pairwise comparison requires a change in the way that the debate over originalism is conducted by both originalists and nonoriginalists.
Originalist scholars need to consider each of the major alternatives to originalism. Practically, speaking that would require either many law review articles or perhaps an anthology. Because there is no committee that tells originalist scholars what to write, this might take a long time. Speaking candidly, I hope I do not have to do it all myself.
Nonoriginalist scholars have a different obligation. When they attack originalism, they need to specify which form of nonoriginalism they advocate as an alternative to originalism. When they make objections to originalism, they should demonstrate that the objection does not apply to their own theory.
If the arguments that I have made in this post are correct, it means that there is much work to be done before the "great debate" results in a clearly defined set of issues. That is, I believe that the "great debate" is at an early stage.
