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02/20/2014

Alternatives to Originalism
Michael Ramsey

In week 7 of their originalism course, Will Baude and Eric Posner consider alternatives to originalism. Unsurprisingly, Eric Posner prefers abandoning constitutional judicial review altogether (read his interesting and provocative book The Executive Unbound, which argues for a form of plebiscitary democracy in place of the "Madisonian republic."). Will  Baude comments here.

I agree with Professor Posner that eliminating judicial review (or less drastically, adopting a strong form of judicial restraint as advocated by Judge Wilkinson) is a formidable competitor to originalism.  Indeed, it seems that the principal critiques of originalism -- that we cannot know what the framers meant by the text, and that in any event we would not want to be governed by rules made for the eighteenth century -- point exactly in that direction.  If the Constitution as written is either unintelligible or inappropriate, I would think the best response might be to rely on modern democracy both to generate the best policy results and to limit government through oversight by the voters.  I find it puzzling that many critics of originalism make these critiques and then think they have thereby made a case for judicial review on the basis of something other than originalism.  If the Constitution's original meaning can't be (or shouldn't be) treated as law, it seems to follow that we should simply not treat the Constitution as law, rather than asking judges to invent some new meaning for it.

As a friendly critique of the Baude/Posner reading list, however, I question whether they have included the best alternative to originalism.  (The class read Bruce Ackerman, David Strauss and Jeremy Waldron, the latter expressing the eliminate-judicial-review position).

What about the view that judges should decide constitutional cases on policy-driven grounds, subject perhaps to some minimal constraint from precedent and practice?  I think this is actually what most academics and many judges think, although they may be reluctant to admit it.  If argued forthrightly, it has some advantages.

First, judges in constitutional cases principally have power only to block laws or executive actions.  (There are exceptions, but perhaps the exceptions should be re-examined).  The idea of judicial tyranny, or even judges "making law", is mostly a misdescription.  Judges veto laws and executive actions; they do not (again for the most part) constrain individual liberty.  Arguably, then, policy-driven judicial review enhances individual liberty (at least as compared to no judicial review, and perhaps as compared to originalism).  One might say it should be preferred on that ground.

Second, federal judges are not "unelected"; they are, in effect,  indirectly elected -- selected by the elected President and the elected Senate.  It's true that they are somewhat insulated from popular will, but it's not clear that this should disqualify them from policy making.  Under the original Constitution, both the Senate (via appointment by state legislatures) and the President (via the original idea of the electoral college) were indirectly elected.  Neither could make law on their own -- they required the consent of the democratically elected House -- but they could block law making.  The courts' role, in a system of policy-driven judicial review, is similar.

It's worth noting that Madison embraced a system not so different from this.  He wanted Congress (including the indirectly elected Senate) to have a "negative" on state laws, and he wanted a Council of Revision, which would have included indirectly elected Supreme Court Justices, to have a veto over federal laws.  Both of these would have operated effectively on policy grounds.  (And of course at the federal level laws could not be passed without the consent of the indirectly elected Senate).  Policy-driven judicial review turns the Supreme Court into a Council of Revision (or, in another metaphor, a third branch of the legislature).  This is usually said as if it were a bad thing, but it is not obviously so.

So I think a challenge to originalism might be put more pointedly by someone who unabashedly embraces policy-driven judicial review.   (Baude mentions Ronald Dworkin; from a different perspective, perhaps excerpts from Richard Posner's classic Overcoming Law).

My frustration, incidentally, is that the debate between originalism and non-originalism is typically not joined on these grounds.  Judges and academic commentators (including Ackerman and Strauss) want to find a version of constitutionalism that is neither originalism nor policy-driven judicial review.  Leaving aside precedent -- which I doubt actually decides very many cases at the Supreme Court level -- I think for the most part there is no third way.  Academic attempts to find one are illusions.  You can try to figure out what the original meaning is, or you can try to figure out what the best result is. The question is which one judges should be doing.