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04/13/2017

Michael Dorf on Originalism (with Responses from Randy Barnett and Larry Solum)
Michael Ramsey

At Dorf on Law, Michael Dorf: The Stakes of the Originalism/Textualism Debate.  Some fo his thoughts on the stakes:

The fact that originalists and living constitutionalists often reach the same outcomes in concrete cases does not necessarily mean that the practical stakes are low, because even as, in academic circles concrete-expectations-and-intentions originalism has given way to semantic originalism in the last three-plus decades, in public debate originalism means concrete-expectations-and-intentions originalism. I will cheerily concede that the academics who propound semantic originalism thereby intend only to work out what they regard as the best (or what many of them think is the only legitimate) approach to constitutional interpretation and construction, without any regard for the political consequences. But even if unwittingly, in doing so the academics enable concrete-expectations-and-intentions originalism--which has a conservative, even reactionary, bias--to flourish.

I made this point at length in a 2012 essay in the Harvard Law Review, in which I reviewed Balkin's Living Originalism and Prof. David Strauss's The Living Constitution. Here is a small sample of what I wrote there:\Widespread acceptance of Balkin’s views would allow conservatives to say that even liberals now accept originalism but then turn around and define originalism narrowly. Balkin and other leading “new” originalists like Professors Randy Barnett, Lawrence Solum, and Keith Whittington make originalism respectable by answering objections leveled at “expectations-based originalism” — but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers’ and ratifiers’ expected applications in considering concrete cases.

And also, referring to Judge Posner's concurrence in Hively v. Ivy Tech, 

... [Posner] suggests that it would be simpler and more honest simply to say that the meaning of discrimination on the basis of sex changed between 1964 and 2017, chiefly through changed social values. He argues that when courts reach results that would have startled the lawmakers whose enactments they construe, the courts may be legitimately "giving a fresh meaning to" the relevant legal provision.

Because Judge Posner reaches the same result as Judge Wood (and, as noted above, even concurs in her opinion), his concurrence might be thought to illustrate how low the stakes are in the debate between semantic originalism (or textualism) and living constitutionalism (or dynamic statutory interpretation). But I think that would be a mistaken inference.

The practical stakes here are high. The closest any senator came to laying a glove on then-Judge Gorsuch during his confirmation hearing was when Senator Franken questioned him about the "frozen trucker" case. A view that openly admits that judges have considerable discretion to reach a sensible result even when, at first glance, the language of a statute (or constitutional provision) cuts against that result, gives judges less room to say "the law made me do it" and thus to evade responsibility for their rulings.

For at least the last two decades, Judge Posner's chief academic objective has been to promote legal realism as against legal formalism (as I explored here and as is further evident in Prof. Segall's description of his remarks at a recent conference). Originalism and textualism are brands of formalism, even when used flexibly to produce results that are indistinguishable from living constitutionalism and dynamic statutory interpretation. Judge Posner's noble goal of demystifying the law (which was always a main aim of legal realism) seeks to dislodge formalism and thus to undercut the latter's reactionary tendencies. Those are some pretty high stakes.

Randy Barnett comments at length at Volokh Conspiracy.  Larry Solum comments at length at Legal Theory Blog.