Is Originalism the Law? Part II: Is Nonoriginalism Illegal?
In my previous post, I attempted to explicate the meaning of the Rule of Recognition and to explore whether that Rule might have forbidden originalism. I concluded that at least as of today, one cannot argue that originalism is forbidden. But is there also an argument that originalism is required and therefore that nonoriginalism is illegal?
I don’t think so. As I discussed in my previous post, it seems likely that Supreme Court justices are allowed to decide cases based on originalism or nonoriginalism. Thus, both would appear to be legal.
But originalists may have an ace or two in the hole. One of the striking things about nonoriginalism is that, at least as practiced by judges, it does not candidly admit what it is doing. It appears that the Supreme Court has never admitted that it is deciding a case not in accord with the original meaning of the Constitution, except to the extent that precedent (or perhaps practice) allowed an opposite result. (It is true that nonoriginalists will admit that the expected application of a provision was contrary to their ruling, but that is different from the original meaning.)
Perhaps this reluctance of nonoriginalists to admit what they are doing is important for the Rule of Recognition. Perhaps it suggests that a practice of violating the original meaning is not in accord with the Rule, which is why they are not admitting it.
Of course, one might respond that the practice need not be admitted. So long as the officials know what is occurring, that is enough for it to be accepted.
Here is where the second ace in the hole might be relevant. In Hart’s view, the Rule of Recognition is the view among judges and other officials. But Hart was focused on England, where there was a long tradition of parliamentary sovereignty. Perhaps in the United States, where there is said to be popular sovereignty, the relevant group is not judges, but the people who hold ultimate authority. And if that group – the public – believes that the original meaning is binding and should not be ignored, then perhaps that is the law.
There is some controversy about what the public believes on this matter, but my sense is that they believe in originalism much more than judges and officials do and thereore this might push the Rule of Recognition towards originalism.
In the end, then, the argument for concluding that originalism is required by the Rule of Recognition appears to rely on these two aces in the hole – that judges do not admit violating the original meaning is important and that the ultimate source of the Rule of Recognition is the people. It is possible that someone will be able to construct an account of the Rule that uses these two premises to establish that judges are required to follow the original meaning, but it would require a fair bit of heavy lifting. So far, this is not been done, but it does not appear that many people have tried.
I am open to the argument for originalism being the law, but at present find the arguments undeveloped. If one day someone makes a persuasive argument, I would, of course, welcome it. But, at present, I believe the best argument is based on the normative soundness of the Constitution and the problems with judicial updating of the Constitution developed here.
(Cross posted at Liberty Law Blog)