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08/28/2017

How Determinate is Originalism? (Michael Dorf versus Larry Solum) [Updated]
Michael Ramsey

Michael Dorf at Dorf on Law: How Determinate is Originalism in Practice? (He says: not very).  From the introduction:

When originalism began gaining traction in the 1970s and 1980s, its proponents frequently cited its supposed constraining impact on judges as a virtue. This claim fit well both with originalism's ideological origins and its nature at the time. Although appeals to the framers were a common trope in judicial rhetoric in prior periods, by the time originalism began to crystalize as an "ism," it was largely a program of resistance against what conservatives saw as the excesses of the Warren Court and, to the extent that the Burger Court built on or failed to cut back on the work of the Warren Court, the Burger Court as well. At the time, originalism was generally promoted as aiming at implementing the framers' intent, which was thought to be reasonably determinate in its concrete applications. E.g., if the framers of the Fourteenth Amendment did not intend (or expect) it to forbid most forms of sex discrimination, then arguments for sex equality under the Fourteenth Amendment were inconsistent with this first wave of originalism.

Partly in response to withering criticism, originalism morphed over time, so that most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text, rather than the concrete intentions and expectations of its framers and ratifiers. And because the original public meaning of the more open-ended clauses of the Constitution tends to be, well, open-ended, original-public-meaning originalism tends to be substantially less determinate than (at least the claims that have been made for) old-style original intent. Originalists solved the problem of seemingly having to support a view of the Constitution that allows official sex discrimination and other unacceptable practices by sacrificing determinacy.

Except that most original-public-meaning originalists cling to determinacy as a virtue. They no longer claim that originalism is close to fully determinate, but they still frequently claim that it is substantially more determinate than other approaches to constitutional interpretation. This claim is empirically testable. If originalism were a methodology that constrained justices, one would expect that a justice who practiced originalism would be somewhat ideologically unpredictable. And yet, as I shall explain, originalism in practice is predictably conservative.

At Legal Theory Blog, Larry Solum has three responses (so far).  From the first

Dorf offers a critique of originalism, but he does not defend any alternative (or set of alternatives).  For reasons that will become apparent, this way of proceeding is problematic.  The question for constitutional theory is not originalism or not originalism: the relevant question is whether originalism is better than the alternatives.  This means that evaluation of originalism should proceed by the method of pairwise comparison.

Pairwise comparison requires that originalism be compared to the alternatives: originalism versus common law constitutionalism, originalism versus pluralism, originalism versus moral readings, and so forth.

For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case.  He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology.  For some alternatives, it seems obvious that originalism would be more constrain--even if originalist judges are highly imperfect.  For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records.  Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.

From the second:

Many constitutional provisions are framed in language that is general and abstract.  For example, the constitutional text uses the phrases "cruel and unusual punishment," "unreasonable searches and seizures," and "equal protection of the laws."  The contemporary understanding of these phrases does support Dorf's view--that they are "open ended" and hence "substantially less determinate."  But it is not clear that the original meaning of the phrases is as underdeterminate as the contemporary meaning.  John Stinneford's work on the Eight Amendment suggests that the original meaning of "cruel and unusual" is actually quite thick--as does Laura Donohue's work on the Fourth Amendment.  Many originalists believe that the original meaning of the Equal Protection Clause was not a general principle of political, economic, and social equality, but was instead about the "protection of the laws," essentially a requirement that all persons (including the former slaves) receive the same protection for their persons and property as white citizens receive.  My own view is that there are a very few open-textured constitutional provisions, but that the indeterminacy of the original public meaning of the constitutional text has been greatly exaggerated.

Professor Solum's third post is about the study on which Professor Dorf relies to show (supposedly) that the Court's originalists have voted in a consistently conservative way.  (The data is from Stephen Jessee and Neil Malhotra, Public (Mis)Perceptions of Supreme Court Ideology A Method for Directly Comparing Citizens and Justices, 77 Public Opinion Quarterly 619 (2013)).  Professor Solum points out:

The values that Dorf relies upon were based on the votes by the Justices in [only] ten cases--although the authors say that similar values would obtain with a larger sample.  ...

Two of the cases were decided on nonconstitutional grounds.  That leaves eight cases in which the Justice Scalia and Justice Thomas voted on constitutional issues.  Dorf's argument is that their ideology scores in all ten cases are inconsistent with what one would expect from "honest originalism"--because Dorf has an intuition (without any empirical grounding) that "honest originalism" would have produced scores further to the left than those that appear in the chart that Dorf included in his post...

Two of the cases were decided on nonconstitutional grounds.  That leaves eight cases in which the Justice Scalia and Justice Thomas voted on constitutional issues.  ...

Of the eight cases that are constitutional in nature, only five following involved originalist reasoning by Scalia or Thomas.  ...

And further:

Let us assume that the ideology scores for Scalia and Thomas would have been the same if the three nonconstitutional cases and the two constitutional cases in which originalism did not play a role were excluded.  Can we reach Dorf's conclusion, that Scalia and Thomas vote more conservatively than would be expected on the basis of "honest originalism" on the basis of a sample of five cases?  Moreover, Dorf's argument is based on generalization from the behavior of two Justices?  Can be generalize about originalist judges in general based on a sample size of two?

The question answers itself.  A sample of two justices in five cases is simply too small to warrant any empirically valid generalizations about the question as to how originalist judges will behave in general.

...

In addition to the small N problem, there is a second reason to question Dorf's use of the Jessee and Malhorta study. Dorf simply assumes that the ideology score of a fair-minded originalist judge would be to the left of the scores that Jessee and Malhorta's study assigned to Scalia and Thomas.  This assumption appears to be based solely on impressionistic guess or intuition by Dorf.  There is no empirical basis for this assumption.

(These posts are too complex to capture all of their points in a few excerpts).

UPDATE:  The fourth and final post from Larry Solum is here. From the conclusion: 

Without doubt, a thoroughly originalist constitutional future will not be achieved in a few years or even a decade or two.  When James Thayer and other constitutional progressives began to advocate their vision of a constitutional future in the early Twentieth Century, its ultimate realization was many decades away--and when it came, it looked quite different than they had imagined.  The tasks of originalist constitutional theory today are similar in difficulty and scope to those faced by the anti-formalist progressives more than one-hundred years ago.  The debate over originalism on the intellectual merits continues and its ultimate outcome is not easy to predict.  But of one thing I am certain.  The case against originalism cannot be made in the way that Michael Dorf attempted in the post that prompted these comments.  Dorf's account of originalism's past is deeply flawed.  His account of originalism's future is based on flimsy assumptions and unsupported speculation.

It goes without saying that originalism's future will not be determined by scholarly debate.  Constitutional practice may be influenced by ideas, but it is even more powerfully influenced by politics.  Scholars can create the intellectual infrastructure that creates the possibility of a constitutional theory like originalism, but originalism's future ultimately depends on political forces that are outside the control of scholars.