Introduction
This is the fourth and final installment in a series of posts commenting on Michael Dorf's How Determinate is Originalism in Practice?. Here are links to the prior posts:
Part One, Concepts and Terminology
Part Two: Public Meaning and Underdetermination
Part Three, Dorf's Use of the Jessee & Malhorta Study
This fourth and final post engages what I believe is the core of Dorf's argument against originalism. In a nutshell, Dorf is arguing that we have tried originalism and it is more conservative in practice than it should be in theory. Because we have had two originalist judges on the Court (Scalia and Thomas) and because the opinions of those Justices are more conservative than we would expect from what Dorf speculates we would get from "honest originalists," Dorf believes that originalism has proven to be a failure in practice. We have given originalism a fair trial, and we cannot expect that it would do any better in the future.
Thus, the gist of Dorf's post makes two points, one about originalism's past and another about originalism's future. I believe that Dorf is wrong about both the past and future of originalism. This post explains why.
Originalism's Past
Dorf believes that originalism's past demonstrates that originalist judges are not practicing "honest originalism." In his original post, he relied on a study by Jessee and Malhorta. In Part Three of my series of posts, I demonstrated that this study does not show what Dorf asserts. Of course, there are many other studies of judicial ideology. For example, the Martin-Quinn scores for the Justices over time also place Scalia and Thomas on the right of the Court, with Alito sometimes ranked as more conservative than Scalia. But shifting to another study will not help Dorf. For reasons that Ward Farnsworth has explained in depth, Martin-Quinn scores simply will not serve the purpose to which Dorf puts them. These scores are not based on a data set of decisions in which originalism plays are role, and they simply have nothing to say about the question whether Scalia and Thomas failed to engage in "honest originalism." Moreover, generalizing about originalism on the basis of decisions by two Justices has obvious problems.
Nonetheless, I do want to consider the implications of Dorf's speculation that most originalist decisions have conservative implications and that there may well be a lower share of progressive originalist decisions than would have obtained if the Supreme Court as a whole did make originalists decisions across the board. Suppose that this speculation is correct, this would raise the question, "why is this the case?" Dorf further speculates that the reason is that Scalia and Thomas have not practiced "honest originalism." Of course, there could be alternative explanations for the lack of progressive originalist decisions (assuming that Dorf's speculation were correct). Dorf offers no evidence that that Scalia and Thomas have engaged in dishonest originalism. In the third post in this series, I examined the five cases in the Jessee and Malhorta study. A thorough examination is far beyond this series of blog posts, but on the surface, it seems evident that Dorf's speculation about dishonesty is not supported by the cases on which the study he cited relies.
Moreover, Scalia and Thomas have written a number of opinions that would count as progressive by any measure. This is particularly true with respect to decisions concerning First and Fourth Amendment issues. If Scalia and Thomas are "dishonest" originalists, we might ask why they every follow the original meaning when it fails to produce the result they prefer.
More fundamentally, there are a number of alternative factors that may explain the lack of progressive originalist opinions by Scalia and Thomas:
--Originalists arguments are frequently raised in cases in which decisions by the New Deal, Warren, and Burger Courts departed from the original public meaning of the constitutional text in an egregious ways. These are the "low hanging fruit" that seems likely to be picked first by advocates and judges who are originalists.
--Progressive cause lawyers are very unlikely to make sophisticated originalist arguments in favor of their positions. Very few lawyers even know how to make a sophisticated public meaning originalist argument--most of those who do are conservative. Progressive lawyers are likely to believe that originalism is nonsense and many of them have a distorted picture of originalism that boils down to "What would Madison do?" Many progressive lawyers believe that originalism is pernicious and may refrain from making originalist arguments, because they believe that such arguments would legitimate originalism.
--The dynamics of a collegial court where only the only two originalist judges are conservative and all of the progressive judges are "anti-originalist" may well work against progressive originalist decisions. Progressive Justices are likely to reject originalism and hence the prospects for an originalist majority are weak. Perhaps more importantly, a sophisticated originalist case for a progressive result is unlikely to be "in play" among the Justices. Conservative Justices may well be suspicious of the few originalist arguments that are put forward by their progressive colleagues, suspecting that the such arguments are purely instrumental and the progressives will disregard originalism when it does not favor a progressive outcome. The hostility of progressive Justices to originalism may make it more difficult for originalist arguments with progressive implications to gain traction--squelching them before they even get started.
--Originalist arguments must come from somewhere, and as a practical matter, most of them must begin in the legal academy. Academics get to pick their projects, and it is no surprise that much of the work by originalists has been conservative. The emergence of progressive originalism is quite recent, and it has not yet begun to influence judicial originalism in a significant way.
In other words, there are several factors that may influence the pattern of originalist decisions by Scalia and Thomas. Dorf has no argument that it is dishonesty and not these alternatives that would explain the pattern of decisions--assuming that Dorf were able to actually back up his speculative claim about the pattern of decisions with empirical evidence.
Originalism's Future
Dorf believes that originalism must be judged solely on its past as measured by the opinions and votes of two Justices--Scalia and Thomas. Dorf argues that just as communism was tried in the Soviet Union and the People's Republic of China, originalism has been tried by Scalia and Thomas. It is glaringly obvious that the comparison is inapt: originalism has never been the dominant methodology on the Supreme Court. Nonetheless, Dorf's post does raise the question whether originalisms future could be different from its past. I think the answer to this question is obvious yes.
The future of originalism is highly uncertain. It depends on so many variables. When we think about that future, the right perspective is not the utopianism of idea theory, which assumes perfect compliance; nor is it the perspective of constitutional fatalism--that assumes that judges will act in the way determined by causal forces that have already been set in motion and cannot be altered by ideas. The right perspective--as I argued in the first post in this series--is the perspective of partially ideal theory. We recognize that judges are humans (not Dworkin's Hercules), but ask the question about our constitutional future based on the assumption that constitutional actors make a good faith attempt to discern the original public meaning of the constitutional text and then attempt to put that meaning into effect.
The best case scenario for originalism in the long run is a future in which originalism is the dominant approach to constitutional practice. That is, we can ask the question what the constitutional future would look like if originalism were to achieve the status that progressive constitutional theory was able to achieve, starting with the New Deal Court and culminating in the late-Warren Court/Burger Court era in which the progressive/realist perspective was almost totally dominant. This best case scenario is no more pie in the sky today than was the progressive constitutional agenda when it was first conceived at the end of the Nineteenth and beginning of the Twentieth Centuries.
This constitutional future is radically different than the constitutional present. Originalism would be dominant approach to the teaching of constitutional law. (I would hope that the dominant originalist professoriate would treat living constitutionalism with great respect than originalism is treated in most classrooms today.) Lawyers of all political and ideological stripes would be skilled at making originalist arguments, and almost all constitutional cases would include originalist arguments on both sides. (Of course, some cases would never be litigated, because of the impossibility of making a credible originalist argument on one side or the other.) Both progressive and conservative justices would approach most cases from an originalist perspective.
One of the important features of a constitutional future in which originalism predominates is that originalist arguments would be thoroughly tested by academics, lawyers, and judges. The adversary system is imperfect, and originalism does require the kind of extensive, laborious, and time-intensive research that is best done by scholars strongly motivated by the search for truth. But when it comes to constitutional litigation and the decision of constitutional cases, it is surely the case that the process would be improved originalist advocacy and adjudication performed by lawyers and judges from diverse political and ideological backgrounds.
In this environment, we might expect that originalism would produce the kind of "moderate conservatism" that Dorf believes would be the outcome of "honest originalism." It is easy to talk about these issues in the abstract, without any attention to the actual original public meaning of particular constitutional provisions. A full blown imagining of an originalist future would be quite a project--and surely cannot be attempted in a blog post. But if Dorf is right, that "honest originalism" would lead to moderate outcomes, then we would expect progressive victories across a wide variety of constitutional issues. Perhaps a revitalization of the Seventh Amendment right to jury trial would undo recent decisions (Twombly/IqbalI). Perhaps, the progressive potential of the Privileges or Immunities Clause of the Fourteenth Amendment for gender equality jurisprudence would be realized along the lines envision by Francis Rooney in her recent note, The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination. And perhaps there would be a return to the constitutionally legitimate practice of constitutional amendment--a practice that has surely be undermined by the Supreme Court's tendency to enact some popular constitutional reforms via amending constructions--judicial decisions that effectively alter the constitutional text outside of Article V. Who knows, perhaps Article V itself would be amended.
Dorf simply assumes that originalism's future can be discerned by a straight-line extrapolation from originalism's past, but that assumption clearly seems incorrect--once we take into account the institutional structure of constitutional adjudication and the sociology of legal ideas.
Conclusion
Without doubt, a thoroughly originalist constitutional future will not be achieved in a few years or even a decade or two. When James Thayer and other constitutional progressives began to advocate their vision of a constitutional future in the early Twentieth Century, its ultimate realization was many decades away--and when it came, it looked quite different than they had imagined. The tasks of originalist constitutional theory today are similar in difficulty and scope to those faced by the anti-formalist progressives more than one-hundred years ago. The debate over originalism on the intellectual merits continues and its ultimate outcome is not easy to predict. But of one thing I am certain. The case against originalism cannot be made in the way that Michael Dorf attempted in the post that prompted these comments. Dorf's account of originalism's past is deeply flawed. His account of originalism's future is based on flimsy assumptions and unsupported speculation.
It goes without saying that originalism's future will not be determined by scholarly debate. Constitutional practice may be influenced by ideas, but it is even more powerfully influenced by politics. Scholars can create the intellectual infrastructure that creates the possibility of a constitutional theory like originalism, but originalism's future ultimately depends on political forces that are outside the control of scholars.
