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02/05/2017

Ilya Somin on Cass Sunstein on Originalism and Unpopular Outcomes
Michael Ramsey

At Volokh Conspiracy, Ilya Somin has further responses to Cass Sunstein's criticism of originalism (my response is here).  Among other points, 

Another problem with Sunstein’s argument is that it could easily be turned against living constitutionalism no less than originalism. Most versions of living constitutionalism give judges considerable scope reinterpret the Constitution in order to address modern social needs. Many of the results Sunstein fears originalism might produce could easily be rationalized by living constitutionalists as necessary responses to changing social conditions.

For example, a living constitutionalist might believe that a religious revival could help alleviate a variety of modern social pathologies, and that state promotion of Christianity could aid in that process. If so, perhaps we should indeed let states establish Christianity as an official religion and otherwise promote its spread. A recent survey found that almost a third of the public believes that “being Christian” is a “very important” part of “being truly American.” Living constitutionalist judges who feel the same way could readily decide that we should overrule or at least greatly narrow precedents constraining state promotion of Christianity.

Similarly, a living constitutionalist could conclude that, under modern conditions, racial, ethnic, and religious profiling is an essential tool for combatting crime and terrorism. Therefore, we should loosen or even eliminate constitutional restrictions on discrimination by law enforcement. They could also cite social science studies suggesting that ethnic diversity reduces social trust and social capital, and thereby rule that states should be given a freer hand in promoting racial and ethnic segregation. This latter possibility actually has historical precedent. In the early 20th century, Progressive living constitutionalists did in fact argue that the state and federal governments should be allowed to engage in extensive discrimination in part based on supposed scientific evidence indicating that it would alleviate various social pathologies.

And in conclusion:

Finally, if we are going to judge constitutional theories by their consequences (as I believe is often justified), then we should pay less attention to scenarios where judges might do something “out of the mainstream” and more to situations where the mainstream itself has gone badly wrong. The political and legal system have lots of resources for blocking terrible outcomes that are at odds with the dominant views of legal elites and majority public opinion. That includes most of the scenarios that Sunstein describes. His examples derive their intuitive force precisely from the fact that majority public and elite opinion finds them outrageous. That very outrage, of course, makes them less likely to happen.

The really difficult challenge for constitutional theory is how to address situations where the mainstream itself has gone badly wrong. Most of the Supreme Court’s worst decisions occurred precisely because mainstream opinion at the time supported them.