In an earlier exchange regarding originalism and Brown v. Board, Michael Dorf complains that I have a “cartoonish” view of non-originalism, because I seem to think it largely produces the result people want it to produce. As he puts it, I (in this post) and Asher Steinberg, who also had an interesting post in the exchange, appear to
entertain cartoonish ideas about what it means to reject originalism. Perhaps they imagine that we nonoriginalists think the Constitution mandates whatever the progressive wing of the Democratic Party favors as a matter of policy at any particular moment. That's a fantasy, however. Serious participants in constitutional theory who consider themselves either nonoriginalist or who can accept those versions of semantic originalism that allow for considerable value evolution at the level of construction or otherwise are not, ipso facto, natural lawyers all the way down. We recognize that there is space between the ideal Constitution we might want and the actual Constitution we have.
Below I'll set out my view in a little more detail, and readers can decide if it is cartoonish.
To begin, I'm excluding versions of nonoriginalism that purport to derive results almost entirely from precedent or that apply a very strong version of judicial restraint. I’m thinking only of versions that see an active role for courts in developing constitutional law. Further, I’m addressing only situations where the Constitution is reasonably contested, not whether the President must be at least 35 years old or whether each state gets two Senators. My contention is that, although versions of nonoriginalism may vary in their stated approaches, they generally produce – and are designed to produce – the outcome, in any reasonably contested case, that the interpreter thinks is the correct policy outcome. (This is not to say that nonoriginalism is simplistic; to the contrary, often the arguments are very complex and sophisticated. But the outcomes are usually predictable).
That is so for two related reasons. First, nonorginalism expressly incorporates the goal of sound public policy. Indeed, as I understand it, that is the principal argument in its favor – it allows judges to update the Constitution to take into account new values and circumstances, rather than being stuck with the proverbial dead hand of the past. Of course there are different views of which values should be taken into account and how the updating should be described. But whether we are talking about David Strauss’ common law constitutionalism, or Justice Breyer’s application of abstract constitutional values, or Dworkin’s or Jim Fleming’s moral reading, or Judge Posner’s economics-based pragmatism, the common ground is that the judge (or scholar) will determine the best rule based on modern values and circumstances.
Second, it’s true that most versions of nonoriginalism do not count only sound public policy as their touchstone, generally acknowledging an array of other factors that may include text, history, practice, institutional competence, etc. However, typically no priority is assigned to them, resulting in a grab-bag of incommensurate factors. It’s only human that, among a host of unranked and often malleable and inconsistent considerations, the best policy outcome would, as a practical matter, prove decisive.
The essential point is that, apart from policy considerations, nonoriginalism has no touchstone. For originalism, the touchstone is the original meaning (or original intent, if you prefer). An array of factors may be used in pursuit of the touchstone, but ultimately there is a single interpretive goal. Nonoriginalism has no counterpart, and as a result its touchstone becomes, expressly or implicitly, the best policy outcome.
If you think this oversimplifies, consider: how many nonoriginalist arguments take the form of “I think affirmative action is a great policy but unfortunately the Constitution, read properly, prohibits it.” (Or substitute any currently contested issue: corporate speech, compelled union dues, strict gun control). Indeed, I’m at something of a loss to see how nonoriginalism could produce that kind of argument. If someone believes that affirmative action is the right way to solve racial problems in this country and that the proper way to interpret the Constitution is to update its provisions (in this case, those relating to race) to take account of modern values and circumstances, what would cause that person nonetheless to think affirmative action is unconstitutional?
Perhaps I am missing something, and I’m happy to become more enlightened and less cartoonish. It would help if nonoriginalists would identify a couple of cases which they think reached bad policy results but whose outcomes they think are nonetheless compelled (not just plausibly reached, but compelled) by nonoriginalism.
To be clear, as I’ve said before, this is not necessarily a critique of nonoriginalism. One can argue, I think quite plausibly, that this is exactly what judges should be doing (see here from Judge Posner, who’s admirably unapologetic about it).
Also, to forestall objections, I readily admit that a somewhat similar claim could be made against originalism. One could say that, because original meaning is often unclear and so many factors (text, drafting debates, ratifying debates, founding-era usage, post-ratification practice, pre-ratification background) can be used to identify it, ultimately one can pick whatever “originalist” outcome one wants to reach for policy reasons. And one could point to the alignment between originalist outcomes and conservative/libertarian policy preferences as proof. I don’t entirely disagree. But the difference is that originalist arguments, in claiming to rest on something objective, should be capable of being defeated on non-policy grounds.
Postscript: Professor Dorf has rather testy a “postscript” to his post in which he complains that I unfairly accuse him of not understanding the difference between original meaning and original expected applications. To the contrary, I’m sure he understands it well -- indeed, he's a leading authority on it. My point was that his post on Brown relied for its force on original expected applications. The reason he says Brown is in such great tension with originalism is that the framers of the Fourteenth Amendment did not (he says) think the Amendment would require de-segregated schools. As he put it in his initial post, “Brown is at least a prima facie problem for originalists because the framers and ratifiers of the Fourteenth Amendment appeared to accept de jure segregation.” Although some originalists argue to the contrary, he continues, “most historians believe these arguments fail, at least if meant to tell us anything about the concrete intentions and expectations of the framers and ratifiers.” (emphasis added).
Thus I said, I think quite fairly, that his argument relied on the framers’ expectations, which (as he knows) modern originalism does not necessarily consider decisive. Indeed, in the post Professor Dorf goes on to acknowledge that much of the tension between Brown and originalism may dissipate if one follows more modern versions of originalism (but, he says, these versions are not real originalism). So I'm not saying he doesn't know the difference (of course I would not say that); I'm saying that the premise of his post (tension between Brown and originalism) relies on old-style originalism. I don't think he need be offended by that.