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02/09/2017

Stephen Sachs on Sunstein on Originalism
Michael Ramsey

A further response to Cass Sunstein's critique of originalism from Stephen Sachs (Duke), via Will Baude at Volokh Conspiracy: Stephen Sachs on the wrong way to criticize originalism.  A key point:

Sometimes the law has bad consequences. Is Sunstein denying that? (Is he a natural lawyer in disguise?) Sometimes even our law has bad consequences. That was surely true in 1788. But are those times wholly past? The danger in the originalism-causes-bad-things argument is that it risks being complacent about the moral state of things right now. People who are pro-life might not think our current practices are all that moral; neither might advocates for animals (of whom Sunstein is one), for prisoners, for drone victims, and so on. As [Mike] Rappaport asks, has the living constitution really done away with every deep injustice that might give rise to similar questions?...

The danger in suggesting that our law won’t produce desperately bad things–and in making the non-production of bad things a criterion for determining our law–is that it might lead us to overlook how bad things really are. ...

Sometimes legal rules really do take consequences into account. But Robert Bork’s America arguments blur the line between legal rules and policy preferences—which is an incredibly important line for lawyers and law professors to uphold!

(For previous comments on Sunstein, see here (Mike Rappaport), here (Ilya Somin) and here (me)).

I think Professor Sachs may mistake the nature of (much) nonoriginalism.  Nonoriginalism does "blur the line between legal rules [or at least constitutional rules] and policy preferences."  Nonoriginalism is "natural lawyer[ing] in disguise."  Like originalism, it may be limited by precedent, institutional competence concerns, and the like.  But ultimately its touchstone is the speaker's intuition of the correct result.  I think the typical nonoriginalist response to Sachs' comments would not be to deny that current law [that is, current Supreme Court doctrine] allows bad things, but to say that current law, to the extent it allows bad things, is wrong and should be re-interpreted.  Indeed, that is the (supposed) advantage of nonoriginalism over originalism: the former allows us to reach the results we like, whereas the latter may impose results we don't like.

The reason this is not really an argument for nonoriginalism is that nonoriginalism does not actually (in the real world) reach the results I (or Cass Sunstein) like; it reaches the results that judges like.  And, as Mike Rappaport says, those "could easily" be bad results.