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02/07/2017

Sunstein’s Critique of Originalism
Mike Rappaport

In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism:

But originalism is just one of many possible approaches to the Constitution. If it 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:

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.

The usual response to this argument from originalists is to context whether these claims are really true about originalism.  One might argue that the original meaning does not lead to some of these results, that others are protected by precedent, and yet others are appropriately struck down.  Mike Ramsey does a great job of responding to Sunstein’s charges here.

But I want to address Sunstein’s argument in a different way.  Perhaps it was just carelessness, but notice the language above that I italicized: “originalism could easily lead to the following conclusions.”  Even if Sunstein were right about this, what would that prove?

Consider the main alternative to originalism: nonoriginalism.  Obviously, this is not a single interpretive approach, but put that to the side.  Could nonoriginliast “easily lead” to those conclusions?  Of course, it could.  In fact, to the extent that nonoriginalism is about pursuing discretion on the part of judges to pursue what a good constitution would be – which is a big part of nonoriginalism – nonoriginalism clearly would allow these results.

It is true that  there are different types of nonoriginalism, but if one is defining the interpretive approach without regard to specific political results – for example, an interpretive approach with the goal of reaching progressive or conservative results – then most forms of nonoriginalism will fail Sunstein’s test.  Consider, for example, the pluralist or modalities approach of Phillip Bobbit.  This approach has various modalities that one can consider and the judge generally has great discretion in deciding which one to employ.  Could it lead to the consequences Sunstein deplores? Of course.

Now, I suppose Sunstein might attempt to defend himself by saying that we should follow precedent.  But precedent is no solution.  Unless Sunstein wants to follow all precedent rigorously – something I doubt he would affirm, since it would have precluded many important cases such as Brown and Obergerfell – he has a problem again.  Precedents can be overturned so the system might lead to the results Sunstein dislikes.

In the end, there is no way out for Sunstein, unless he wants to define his position as simply favoring progressivism.  Yes, an interpretive approach explicitly designed to reach progressive results will make Sunstein happy.  But the power-grabbing arbitrariness of this approach would be too obvious to command much assent.