Originalism and Unpopular Outcomes: A Reply to Sunstein
[O]riginalism could easily lead to the following conclusions:
- States can ban the purchase and sale of contraceptives.
- 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.
- The federal government can discriminate against women -- for example, by banning them from serving in high-level positions in the U.S. government.
- States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
- 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.
- States can establish Christianity as their official religion.
- 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.
As to six of them, I think not much work is needed. To begin, this is something of an academic exercise: none of the first six is going to come before any actual judge. No government entity wants to do any of these things, and no one thinks such a case would be worth making.
But in any event, the force of the "propositions" comes only from the assumption that originalists do not follow precedent. Sunstein admits that Justice Scalia followed unconstested and deeply entrenched precedent, but says "other originalists" do not. It's true that some academic originalists categorically reject precedent (though others do not); academics have the luxury of taking positions that are, well, academic. I'm not aware of any originalist judge or Justice who categorically rejects precedent -- some may point to Justice Thomas, but in fact Justice Thomas does follow apparently nonoriginalist precedent in multiple areas. For example, he accepts the application of the equal protection clause to the federal government.
There is considerable debate among originalists as to how far to follow precedent and as to the theoretical justification for doing so. One approach, suggested by my colleague and co-blogger Mike Rappaport, is that, at minimum, originalists should accept nonoriginalist rulings that are so widely embraced that, in the absence of judicial adoption, they would be enacted by constitutional amendment. The idea is that, but for the mistaken ruling, a constitutional amendment would have been adopted -- but it was preempted by the Court. And of course all originalists would respect a constitutional amendment.
I think this is very attractive as a minimum (some would go further in preserving precedent, as Scalia did). But even this bare minimum takes care of six of Sunstein's seven examples. When even the narrowest view of precedent covers the examples, and no "practicing" originalist rejects precedent altogether, I think one cannot say originalism "could easily" lead to the bad outcomes Sunstein suggests.
(I would add that at least one of the six "propositions," and perhaps more, do not follow from originalism in any event, even without regard to precedent. In my view Brown v. Board of Education reflects the original meaning of the Fourteenth Amendment, as Michael McConnell of Stanford has persuasively argued, and as Scalia believed. Various leading originalist scholars, including Michael Paulsen and Steven Calabresi, have argued that the Fourteenth Amendment also bars discrimination against women. Likewise many originalist scholars believe that the Fourteenth Amendment incorporates the establishment clause against the states (though I know Justice Thomas has his doubts). Nonoriginalists like Sunstein make casual "scare" arguments about what originalism "could easily" require, but often there are actual originalist arguments to the contrary).
As to Sunstein's seventh proposition, I think it does not belong with the others, and indeed putting it there is something of a slight of hand. Some parts of the Endangered Species Act and the Clean Water Act are undoubtedly constitutional under the original meaning of the commerce clause, and parts are likely protected by the precedent of Wickard v. Filburn. But the outer boundaries of those Acts have not been tested at the Supreme Court and are not part of settled law -- instead, they are being actively litigated (see Mark Pulliam here on the cave bug litigation). Regardless of what one thinks of the merits, these disputes are an entirely different matter -- for better or worse, originalism might well make a practical difference to the outcome.