« Gorsuch Roundup
Michael Ramsey
| Main | Jeffrey Rosen on Judge Gorsuch
Michael Ramsey »

02/02/2017

Cass Sunstein on Originalism and Unpopular Outcomes
Michael Ramsey

At Bloomberg View, Cass Sunstein (Harvard): Originalists Put Politics Over Principle.  Despite the title, the core argument is that originalism leads to unpopular -- and unacceptable -- results:

If [originalism] is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about.

For example, originalism could easily lead to the following conclusions:

  1. States can ban the purchase and sale of contraceptives.
  1. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
  1. The federal government can discriminate against women -- for example, by banning them from serving in high-level positions in the U.S. government.
  1. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
  1. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
  1. States can establish Christianity as their official religion.
  1. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.

The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions -- and originalists have to do real work to explain why they reject them.

These are fair questions (although note the important "could" in the lead-in sentence above: originalism. like other methods of interpretation, "could" lead to a lot of outcomes; surely the question is whether originalism "must" or "would likely" lead to these outcomes).

In a later post, I will try to do some "real work" to explain why originalists should (or maybe "could easily"?) reject at least most of these propositions.

Sunstein continues (more in keeping with his title):

The larger irony is that while there are careful, reasonable and nonpolitical arguments for certain forms of originalism, the views of many self-proclaimed originalists line up, not with those of We the People in 1789, but with those of the right-wing of the Republican Party in 2017. Whether we’re speaking of campaign-finance laws, commercial advertising, gun rights, affirmative action, gay rights, property rights or abortion, originalism has failed to prevent judges from voting in accordance with their political predilections.

Any president deserves a degree of deference with respect to Supreme Court nominees, and Trump’s model, Justice Scalia, was a genuinely great judge. But part of his greatness consisted in his willingness, on important occasions, to abandon originalism -- and to vote in ways that defied easy ideological categorization.

Too often, today’s originalists read the Constitution to fit with the latest Republican Party platform, while solemnly proclaiming their reverence for the founding period and their own political neutrality. That’s shameful -- and it’s a sham.

He does not name names or provide examples, and that seems unfair.  If it happens "too often" should there not be some examples?  Merely listing some areas where Republican Party preferences and originalism coincide is not sufficient.  As discussed recently on this blog, and as Sunstein seems to concede, Justice Scalia went against conservative preferences in numerous cases (while voting in ways consistent with conservative preferences in others).  Yet Scalia is widely celebrated as the exemplar of originalist judging -- does that not suggest that "today's originalists" actually applaud departures from the "latest Republican Party platform" when required by the Constitution's original meaning?  (As, of course, they should).