Last week Cass Sunstein had a post at Bloomberg accusing Justices Scalia and Thomas of adopting a "moral reading of the Constitution" in a range of areas where they (Sunstein said) have shown a "conspicuous lack of historical curiosity." (Noted here). His examples were affirmative action, regulatory takings and commercial speech under the First Amendment.
I've had my say on originalism and affirmative action, so I won't say more. Professor Sunstein's other two examples seem to me to miss the mark, however. I would call them instead examples of the originalist Justices following non-originalist precedent.
In the case of regulatory takings, the idea of a constitutional limit upon regulation under the takings clause dates at least to Justice Holmes' 1922 decision in Pennsylvania Coal Co. v. Mahon: "[W]hen it [a regulation's diminution of property rights] reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act." The Court reaffirmed that principle in Penn Central Transportation Co. v. New York City in 1978 (it decided against the property owner after applying a balancing test, but it didn't deny the central point from Mahon that a regulation that went too far would be a taking). While it's true that the originalist Justices have applied that rule without asking whether Mahon was rightly decided, it's hard to see that they've extended it. The main case is Lucas v. South Carolina Coastal Commission, in which Justice Scalia wrote for the Court to invalidate a regulatory taking. But he did not go beyond Mahon -- the taking in that case deprived the property owner of all material economic use of the property, which surely exceeded the "certain magnitude" the Court in Mahon thought would trigger a taking.
Similarly, the modern application of the First Amendment to commercial speech dates at least to Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council in 1976 and gained its current doctrinal shape in Central Hudson Gas v. Public Service Commission of New York in 1980. While it's true that Justices Scalia and Thomas have taken a fairly aggressive view of those precedents (e.g., in 44 Liquormart Inc. v. Rhode Island in 1996), this field (like regulatory takings) seems better described as originalists applying non-originalist precedent rather than originalists creating new non-originalist rules. To be sure, Professor Sunstein is right that originalists should have "historical curiosity" about these doctrines, but that hardly makes Scalia and Thomas hypocrites for following them.
Of course, this raises the question of whether and how originalists should apply non-originalist precedent. Consider this interesting post by Josh Blackman: How should Libertarian Originalists view "departures from the original meaning ... [that] promoted rights Libertarians would favor"?. While purists might deny that incorrect precedent should ever be followed, most originalists -- including Justice Scalia and, perhaps to a lesser extent, Justice Thomas -- accept precedent as a modifying principle upon originalism. Professor Sunstein's critique is too simplistic because it does not take into account the Justices' fidelity to non-originalist precedent.
That still doesn't entirely shield Scalia and Thomas from Sunstein's charge, however. There are areas where Scalia and Thomas have aggressively tried to reverse non-originalist precedent, and others (including, I would say, regulatory takings and commercial speech) where they have been happy to apply the non-originalist precedent they find. How is this choice made? A cynic might say that the Justices attack the non-originalist precedent that they dislike on policy grounds (such as Roe v. Wade) and tolerate the non-originalist precedent they agree with (or don't strongly disagree with) on policy grounds.
If that charge is true, it seems a problem. Especially if one's principal justification of originalism is the rule of law (as Scalia's seems to be), it is troublesome if a Justice's policy-driven agreement or disagreement is a main element in deciding when to give prior cases precedential effect. There should be a policy-neutral theory of precedent. Or, to answer Josh Blackman's question, one might say that a libertarian originalist (or any other kind of originalist) should view non-originalist decisions promoting rights that person favors in the same way as he views non-originalist decisions that don't promote favored rights (or promote disfavored rights). The rule of law demands a policy-neutral theory of precedent.
That, though, may be unrealistic. My guess is that many, perhaps most, peoples' views of precedent are heavily influenced by their view of the policy merits or de-merits of the prior opinion. For example, I expect that most people think Plessy v. Ferguson, the 1896 separate-but-equal case, was properly overruled in Brown v. Board of Education precisely because Plessy was such an appalling case on policy grounds. But if that's true, then Justices Scalia and Thomas may be less easily criticized for following non-originalist precedents they like and attacking those they don't (if, in fact, that's what they are doing).
All of this is a round-about approach to today's oral argument at the Supreme Court in Clapper v. Amnesty International USA (SCOTUSBlog analysis here). The question there is whether the plaintiffs have standing to challenge a U.S. government surveillance program when they are not able to prove that they have been or are likely to be targeted. The law of standing, I think, is another example of the phenomenon Sunstein highlights: originalist Justices applying a doctrine without discussing its originalist roots. For example, modern standing law has its conventional doctrinal statement in the 1992 decision Lujan v. Defenders of Wildlife (written by Justice Scalia). But Lujan doesn't say anything about the historical/originalist foundations of standing. And arguably, it not only applies prior standing doctrine but extends it (or at least rationalizes it) in a way that further limits access to courts in certain types of cases.
True, the Constitution's text (Article III, Section 2) requires a "Case" or "Controvers[y]" to invoke a federal court's jurisdiction. Advisory opinions are not allowed. But one would need to go a ways beyond the text to see why the Clapper case isn't a case or controversy. (There's no doubt, for example, that the parties are adverse and the plaintiffs have a strong commitment to their claim). Clapper thus raises interesting questions about the original understanding of standing -- and difficult ones, I expect, because my guess is that claims like this simply weren't made in the eighteenth century, so it's hard to know how the Constitution should regard them. Based on past standing cases, though, it seems likely the Justices won't explore the history -- which in turn raises again the question of when and whether it is appropriate for an originalist Justice to apply a doctrine without considering the adequacy of its original foundation.