Cass Sunstein: Resist the Siren's Call of 'Originalism'
At Bloomberg, Cass Sunstein (Harvard Law): Resist the Siren's Call of 'Originalism'. The core of the argument:
It [originalism] seems like an appealing argument, but it faces three objections. The first is historical. Did those who ratified the Constitution embrace originalism? If not, originalism turns out to be self-contradictory, because the original understanding rejected originalism as Scalia and Thomas understand it.
The second objection has to do with changed circumstances. In prohibiting unreasonable searches and seizures, the ratifiers of the Fourth Amendment couldn’t have anticipated wiretapping, much less the Internet. But it would be absurd to think that the government has unlimited power to tap our phones and monitor our e-mails.
The final objection, and perhaps the most fundamental, involves the consequences. If we accepted Scalia’s version of originalism, much of the U.S. constitutional system would be deeply unsettled, and in a way that would trouble liberals and conservatives alike.
Will Baude responds to the three objections here:
Objections 1 and 2 are simply not true of most sophisticated originalists, who acknowledge that when a constitutional provision was intended to have broad or evolving scope, the originalist thing to do is to give it broad or evolving scope. (This also makes it easy to accommodate new situations.)
To be sure, originalists do sometimes argue that people like Sunstein are far too quick to assume that a provision is “broad and abstract,” but this a difference in application, not theory. Serious originalists ought to agree with Sunstein that a provision should not be interpreted to be more originalist than it was originally intended to be.
Objection 3 brings us back to a recurring theme of my recent originalist posts. Critics of originalism don’t get to just declare that embracing precedent — which nearly all originalists do, to differing extents — is not the originalist position. Or if they do wish to define originalism so as to exclude most of its practioners, then they ought to be clear that they are attacking only an extreme version of the theory.
Eric Posner responds to the response: Originalism and Precedent: Baude v. Sunstein.
I'm baffled by Posner's response. He appears to think, if I am reading it right, that there are only two potential originalist positions on precedent: one that does not believe in precedent at all, and one that "give[s] enough weight to precedent that the original understanding itself rarely or never plays a role in actual judicial decision-making. "
But surely it is possible to give substantial weight to precedent and yet find a meaningful role for original understanding. That is so for at least two reasons:
(1) precedent rarely decides actual Supreme Court cases; precedents can be distinguished or extended depending on whether one thinks they should have generative force or not. I would think Professor Posner is enough of a realist to agree. So the question is often whether to extend non-originalist precedent, and a reasonable originalist might undertake to follow but not extend non-originalist precedent (and to read it narrowly). That approach would leave a substantial meaningful role for original understanding without fundamentally destabilizing law in the way Sunstein charges.
(2) every plausible theory of precedent accepts that precedents can sometimes be overruled. The only debate is how often, under what circumstances, and why. An originalist might well answer: sometimes, when the disruption would not be great, and when the precedent is clearly and fundamentally wrong as a matter of original understanding. Again, that approach would leave a substantial meaningful role for original understanding without fundamentally destabilizing law in the way Sunstein charges.