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04/09/2017

Bryan Garner on Originalism; Ken Levy Responds (plus my Comments)
Michael Ramsey

At The Hill, Bryan Garner: Critics of originalism don't know their history, or Founding Fathers.  (This is the best defense of originalism -- really about the only defense of originalism -- published in popular commentary [as opposed to legal blogs] in connection with the Gorsuch confirmation.).  From the introduction:

People might wonder why Justice Scalia would write a prescriptive book on judging (“Reading Law”) with someone who had declared himself to favor same-sex marriage, to be ardently pro-choice, and to favor repeal of the Second Amendment. The answer is that because I’m a textualist and an originalist, my personal views on these matters are quite irrelevant. (Sound familiar? You hear Judge Gorsuch say that again and again.)

 If I were a judge, I wouldn’t be enacting my own visions of wise policy — that’s not what a good judge does — but instead I’d be applying a “fair reading” to the statutory or constitutional words.

Only if I were a “pragmatist” or a “Changing Constitutionalist” would these private views become important. Then I wouldn’t be interpreting a document. Instead, I’d be declaring new policies that have no discernible foundation in the Constitution itself. I’d be looking within my heart and soul to consider what I believed to be fundamentally important. There I might discover new rights that nobody had ever before seen.

Also in The Hill, Ken Levy (who had an earlier essay that Professor Garner criticizes) responds: Judge Gorsuch's strict 'originalism' puts justice itself at stake.

Professor Levy has emerged as one of the better originalism critics in the Gorsuch matter (at least he does not rest on absurd claims about originalist outcomes), and his essay comes close to squarely identifying the core issue.  But it still gets major points wrong.

For example, he says: "[Textualism] says that we shouldn't make any assumptions that are not explicitly stated in the Constitution."  No serious version of textualism thinks this.  (See my discussion in this article: Missouri v. Holland and Historical Textualism).  Justice Scalia clearly did not think this.  I'm sure Professor Garner does not think this.  Textualism says that constitutional rulings must be ultimately tied to the meaning of an identified part of the Constitution's text. (Historical textualism, as I define it, says that constitutional rulings must be ultimately tied to an identified part of the Constitution's text given the meaning it had an the time of enactment -- hence, a form of originalism).  It does not say anything more than that.  In particular, it does not say "explicitly."  Professor Levy goes on to say constitutional textualism is self-refuting because the Constitution doesn't say it has to be interpreted using textualism.  But I think there is a good argument that this is what the drafters assumed would happen, based upon (among other things) that they worked very hard to draft a fairly precised text, and struggled over the specific wording.  (John Manning makes that point here).

Professor Levy also claims to have found the mythical third way between originalism and pure subjectivism (which if found, might lessen some of the stronger defenses of originalism, including Professor Garner's).  Levy writes: 

One problem with [Professor Garner's defense] of originalism is that it relies on a false dichotomy between originalism and judicial subjectivism. As I argued in my New York Times editorial, there is a third possibility: principled pragmatism. Again, principled pragmatism:

"says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision."

Some originalists will say that principled pragmatism reduces to judicial subjectivism, that it is merely a fancy term for anything goes. It is certainly true that judges could pretend to be principled pragmatists when they are really just subjectivists — bending and twisting the Constitution to yield the outcome that they prefer. But the same can be said of every other theory of constitutional interpretation — including originalism.

This is a key claim, but I don't think Professor Levy is persuasive.  First, all of the things he points to apart from original meaning and public policy consequences are sufficiently malleable that I do not see how they provide much constraint in contested cases.  (I do think they provide some constraint).  Second, he concedes that a good part of this program turns on (the judge's assessment of) public policy consequences -- which is just another phrase for the judge's subjective assessment of the preferred outcome.  Third, the example he gives earlier in the essay seems to cut the other way.  He begins by saying:

Suppose a case comes before the Supreme Court in which the principal issue is whether 90 days of solitary confinement for a first-time minor offense — for example, simple battery — constitutes "cruel and unusual" punishment under the Eighth Amendment.

 According to an originalist, we must do our best to determine how the ratifiers — or at least the society in which the ratifiers lived — understood these terms. If, for example, they understood cruel and unusual to mean "causing gratuitous physical suffering," then judges would have to decide that 90 days of solitary confinement for simple battery is not cruel and unusual because the suffering is not so much physical as psychological.

I think that's right, given the hypothetical.  He goes on to say:

But why should modern judges be bound by the ratifiers' understanding of constitutional text — especially if they think that the ratifiers’ understanding would lead to an unjust result?

And later:

Ultimately, the debate between originalists and their opponents comes down to a debate between two competing values: historical allegiance to the founders and justice. In the example above, if the ratifiers' understanding of cruel and unusual applied only to physical suffering, not purely psychological suffering, then the question of whether 90 days of solitary confinement for simple battery is cruel and unusual admits of two possible answers: (a) a backward-looking originalist interpretation with an unjust result and (b) a forward-looking pragmatic interpretation with a just result.

To be clear, "just result" here means "the judge's personal assessment of a what is a just result."  So I do not see how this is materially different from what he calls "subjectivism" (that is, what I would call the judge seeking the [subjectively] just result).  True, some constraint is applied by the obligation in our system for the judge to explain the result to some extent in terms of text, constitutional values and constitutional purposes -- but not that much.  At least, I am not persuaded that in our modern system the judges' subjective assessments do not play a substantial role.  Professor Levy does not provide any example to the contrary.

Nonetheless, I think the first sentence of the last quoted paragraph is very close to capturing the core of the debate.  I would  modify it only slightly to say:

Ultimately, the debate between originalists and their opponents comes down to a debate between two competing values: historical allegiance to the [rule of law as established by the] founders and [modern judges' personal assessments of] justice.

Put that way, I think it can be fairly debated.