Over at Dorf on Law, Michael Dorf has a post entitled How Determinate is Originalism in Practice?, which I urge you to read. The gist of Dorf's post is something along the following lines:
- Originalists claim that originalist methodology is more determinate than other approaches to constitutional interpretation.
- This claim is empirically testable.
- If originalism did yield determinate outcomes, decisions by originalist judges would be only moderately conservative: good faith originalism should lead to mixed outcomes.
- Political scientists (Stephen Jessee and Neil Malhorta) have found that the originalist judges are also the most conservative.
- Therefore, originalism is not more determinate than other methodologies.
Before I get into the specifics of Dorf's post, I want to emphasize that this is an important topic for constitutional theory in general and originalism in particular. The best scholarly treatment of which I am aware is by Heidi Kitrosser, in her thoughtful essay, Interpretive Modesty. Here is the abstract of Kitrosser's essay:
“New originalism” presents a profound challenge to originalist determinacy – that is, to the notion that original constitutional meanings alone can resolve most constitutional controversies. While new originalists purport to seek out and adhere to original meanings of constitutional provisions, they acknowledge that some original meanings are too thin to fully resolve many constitutional questions. Such acknowledgment stands in sharp tension with traditional claims of originalist determinacy.
While new originalism improves on “old originalism” in important ways, the former’s break from determinacy is not clean enough. New originalists are correct that it is neither epistemologically defensible nor normatively preferable to attribute complete answers to constitutional controversies to original textual meanings alone. This Article bolsters that point, responding to old originalists’ newest defenses of determinacy. Yet the Article criticizes new originalists for their own, more limited determinacy. While new originalists maintain that original meanings alone often are insufficient to resolve constitutional controversies, they overlook the epistemic uncertainties intrinsic in ascertaining original meanings themselves.
This Article offers an “all the way down” critique of originalist determinacy. It challenges originalism’s ability not only to answer all constitutional questions, but also to settle reliably on single original meanings in the first place. The Article proposes to build on two of new originalism’s tools – its embrace of thin original meanings and its distinction between interpretation and construction – and to build as well on historicist critiques of originalism to create a new approach to epistemic uncertainty in constitutional interpretation. The approach is called “interpretive modesty.”
If you are interested in the issues raised by Dorf's post and my reply, I urge to read Kitrosser, for a richer and more systematic account of the relationship between originalism and debates over the underdeterminacy of law.
Because Dorf has raised a number of issues, my comments will be be coming be divided between a few posts. In this first post, I will deal with the concepts and terminology that frame the issues that Dorf has raised.
The Importance of Pairwise Comparison
Dorf offers a critique of originalism, but he does not defend any alternative (or set of alternatives). For reasons that will become apparent, this way of proceeding is problematic. The question for constitutional theory is not originalism or not originalism: the relevant question is whether originalism is better than the alternatives. This means that evaluation of originalism should proceed by the method of pairwise comparison.
Pairwise comparison requires that originalism be compared to the alternatives: originalism versus common law constitutionalism, originalism versus pluralism, originalism versus moral readings, and so forth.
For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case. He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology. For some alternatives, it seems obvious that originalism would be more constrain--even if originalist judges are highly imperfect. For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records. Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.
It would be helpful if Professor Dorf would specificy what alternative or set of alternatives to originalism he has in mind when he claims that originalism is not more constraining than the alternatives.
Ideal Theory, Nonideal Theory, and Partially Ideal Theory
Dorf's post offers a critique of originalism that is based on noncompliance with the theory. This is certainly a valid critique, but it does have certain implications. To draw these out, it is useful to distinguish between three kinds of normative legal theories as follows:
Idea Theory: An ideal normative legal theory is one that assumes that the relevant actors comply with the requirements of the theory. Thus, as an ideal theory, originalism assumes that judges do decide cases in accord with the original meaning of the constitution.
Nonideal Theory: A nonideal normative legal theory makes no assumptions about compliance. Instead, it takes the relevant actors as they are, with whatever motivations and goals they actually have.
Partially Ideal Theory: A partially ideal theory does not assume compliance, but does assume that most of the relevant legal actors will make good faith efforts to comply with the theory.
Dorf is engaging in nonideal theory when he argues that judges do not in fact comply with the requirements of originalism. There is nothing wrong with that, but it is doubtful that any constitutional theory fairs well if the question is whether current judges are actually in compliance with the requirements of the theory.
This point becomes even more important when it is combined with the prior point about pairwise comparison. It is easy to apply double standards. One argues for one's own theory from the perspective of ideal theory, but then offers a critique of opposing theories.
Dorf does make an argument for the perspective of nonideal theory in the following passage: "at some point one must judge a prescriptive theory by the actual real-world results of the efforts to apply it, even if those efforts depart in some ways from the theory." That point seems correct, but it is not clear to me that originalism has reached the "point" at which we can fairly judge whether it has worked in practice. Dorf relies on an analogy between originalism and communism--arguing that it was fair to judge communism as a political theory on the basis of the track record of the Soviet Union and the People's Republic of China. I am not sure I agree that these regimes were in compliance with the requirements of Marx's version of communism, but even assuming they were, the situation of originalism is simply not comparable. For the analogy to hold we would need to have an originalist Supreme Court, with a majority of judges who were committed to originalism. Surely, no one would say that it would be fair to judge communism as a political theory on the basis of a French government in which two of the nine most important ministers (but not the Prime Minister or President) were communists.
Determinacy, Constraint, and Compliance
Dorf's post claims to be about the question whether originalism is determinate, but I believe that he is conflating three distinct concepts, which we can call "determinacy," "constraint," and "compliance." Here is how I will be using the terminology:
Determinacy: A decision procedure is more or less determinate to the extent that it does or does not narrow the range of outcomes. Thus, a legal rule is fully determinate if compliance with the rule produces one and only outcome. At the other end of the spectrum, a legal rule is fully indeterminate if it permits all possible outcomes: that is, an indeterminate rule gives officials complete discretion. Between the poles of determinacy and indeterminacy lies the vast zone of underdeterminacy--where a rule forbids some outcomes and permits others. Thus, "determinacy" or more precisely "underdeterminacy" is scalar and not a binary.
Constraint: A constitutional theory provides constraint to the extent that it requires officials (paradigmatically judges) to decide cases on the basis of considerations that are different from their first-order judgments about how the cases ought to come out. The Constraint Principle (which features in almost all versions of originalism) requires (at a minimum) that judges decide cases in ways that are consistent with the communicative content of the constitutional text. A version of originalism that allowed for judges to take their first-order judgments into account in certain circumstances--for example, if they had very strong preferences--would be less constraining than one which did not allow for this exception. A theory that allows judges to decide on the basis of their first-order judgments about how cases should come out would provide no constraint at all.
Compliance: Compliance with a constitutional theory occurs when officials actually act in accord with the requirements of the theory. Thus, there is compliance with originalism if judges actually decide on the basis of the original meaning of the constitutional text.
The determinacy of originalism depends on two things: (1) the extent to which the constitutional text underdetermines constitutional doctrine and thereby the decision of constitutional cases or issues, and (2) the theory of constitutional construction that resolves cases in the "construction zone" (the area of underdeterminacy).
The constraining force of originalism is also a function of two things: (1) the theory of construction, and (2) the specification of the constraint principle.
Consider first, the theory that guides constitutional construction: if an originalist adopted a principle of discretion for the construction zone, then that version of originalism would provide no constraint at all in cases where the text was underdeterminate. But no originalist (of whom I am aware) has that theory. Some originalists believe that construction should be guided by a rule of deference to democratic institution in cases where the text is unclear: that theory of construction is highly constraining--essentially allowing no discretion in the construction zone.
Consider second, the specification of the constraint principle. The least constraining version of that principle would be a requirement that original meaning be considered as a factor: that version of constraint is so weak that someone who adopts it is not likely to be called an "originalist"--on any plausible notion of what originalism is. Constraint as consistency--the view that doctrine must be consistent with the original meaning is more constraining. Constraint as derivability--the view that doctrine must all be derived from the text--is more constraining still.
From the above discussion, it should be clear that constraint and determinacy are two different concepts. The constitutional text might be highly determinate, but that determinate text would provide very little constraint if a weak version of the constraint principle were adopted. Similarly, if the text were very underdeterminate but the principle of construction for resolving cases in the construction zone did not allow for discretion, the net effect would be a high degree of constraint.
The third and final idea is compliance. At this point it should be obvious that compliance is conceptually distinct from determinacy and constraint. A highly determinate provision of the constitutional text and a highly constraining version of originalism would not actually result in originalist decisions if judges and officials simply ignored the theory. Similarly, there could be perfect compliance with a constitutional theory that granted judges discretion, but no constraint would result.
I believe that Dorf's post is not actually about either determinacy or constraint. His real target is compliance. The core of his argument is that originalist judges do not comply with originalism, because if they were complying, their decisions would be less conservative than they actually are. Indeed, he seems to assume that the constitutional text is not radically indeterminate and that originalism as a theory is relatively constraining. It is those assumptions that allow him to reach the conclusion that the pattern of decisions by originalist judges is more conservative than would be expected if they were actually complying with the requirements of originalism.
It would be useful if Dorf could clarify his post and specify which of the three ideas (determinacy, constraint, or compliance) is doing the work. Of course, it might be that he has in mind some fourth idea that I have overlooked. Or perhaps, it is some combination of the three notions I have discussed.
Empirical Evaluation of Theory Compliance
The core of Dorf's post is an empirical claim. As I understand his claim, he is arguing that the originalist Justices (Scalia and Thomas) make decisions that are, on average, more conservative than would be expected if they were in fact complying with the requirements of originalism. This claim is based on a study that produced ideology scores for the individual justices, the Court, and members of the public (broken down by part). I am still acquiring the study, but at this point I simply want to observe that the "N" (number) of originalist studied is two (Scalia and Thomas).
It is not clear to me that the evidence that Dorf provides is sufficient to make out this claim. He does not have direct evidence. There is no study that determines what outcomes would have been reached by an originalist and then shows that Scalia and Thomas deviated from those decisions. Dorf is arguing instead that we intuitively would expect that Scalia and Thomas would been rated as less conservative if they were complying with originalism.
I am likely to have more to say about the methodology of the study after I have read the original, but at this point I do have a number of doubts. Let me lay some of them out in summary form:
- Obviously, there is a small N problem with the use to which Dorf puts the study. Only two members of the Court were originalists. There may be enough data to draw conclusions about these two individuals, but it does not follow that we can generalize to all originalists.
- Scalia and Thomas were members of a collegial court with seven members who were not originalists at any given time. The collegial dynamics of the Supreme Court frequently lead originalist judges to make nonoriginalist decisions. This means that originalist opinions are relatively rare--even concurring or dissenting opinions. Originalist majority opinions are very rare indeed, and when Scalia or Thomas writes for the majority they may depart from originalism.
- Because of the adversary system, the parties play an important role in determining which originalist arguments reach the Court. In most constitutional cases, the parties rely on precedent-based reasoning. In many cases, no originalist argument is presented to the Court. In these circumstances, Scalia and Thomas frequently decide the case on the basis of the arguments presented by the parties.
- Even if the study did focus on opinions in which originalist reasoning was considered by Scalia and Thomas, there may be other factors that account for the conservatism of the outcomes. So far as I know, there is no data on the frequency of originalist arguments made by different kinds of parties in different kinds of cases, but it seems reasonable to assume that originalist advocacy is associated with lawyers advancing conservative arguments. It is relatively rare for progressive lawyers advocating progressive causes to make originalist arguments--even when they are available.
Dorf's post does not discuss the methodology of the Jessee and Malhorta study. He does not link to the study itself, but instead links to a webpage that presents one chart based on the study. I think it is fair to say that much more explanation would be required for Dorf to be able to make a credible claim that the study actually shows that Scalia and Thomas departed from originalism in a conservative direction.
Conclusion
As I mentioned at the outset, this post does not directly engage Dorf's main points. Rather, my aim has been to clarify the nature of the issues. Over the course of the next few days, I will offer comments that are directed squarely at the substance of Dorf's helpful and illuminating remarks.
