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Law, Politics, and Liberal Nonoriginalism
Mike Rappaport

Recently, I started following a constitutional law professor listserv for the first time in many years.  The listserv is dominated by a certain form of liberal nonoriginalism that might be called activist.  One justice who I believe reflects this approach was Justice Brennan, but some current members of the Court might be included in this group as well.  This has gotten me thinking a bit about the methodology of activist liberal nonoriginalism.

What is striking about this approach is how much of an overlap there is between a person’s political views and his views on the meaning of the Constitution.   This overlap is so strong that might wonder whether the content of constitutional law under this approach is simply one’s political views.

While the person's political views are a first approximation of the content of constitutional law under this approach, I do think there are some constraints on constitutional law under this approach. First, the constitutional text might seem like a constraint, and in some cases (such as the Senate containing two Senators from each state) it does constrain.  But, as anyone trained in these matters knows, one can derive a great many meanings from the words of the Constitution, especially if one accepts relatively loose derivations, as do practitioners of this approach. 

Second,  precedent might seem like a constraint, but in the main it is not all that constraining. Precedents which further the person’s political views are accepted and read broadly.  Precedents which constrain or block one’s political views are read narrowly or thought to require being reversed.  Supreme Court precedent doctrine, moreover, is relaxed enough that the Justices can usually overturn (and if not distinguish) cases they disagree with.

Third, another constraint is based on politics – the reaction to judicial decisions by elites or the public.  I have little doubt that many of the justices in the majority in Windsor (the DOMA case) would have liked to go all the way and hold same sex marriage to be constitutionally required under the Equal Protection Clause, but did not do so because they believed that there would be strong resistance throughout the country to such a holding.  This is true, even though such a holding would have made much more sense, from both originalist and nonoriginalist jurisprudential perspectives, than Windsor did. Thus, these justices were “constrained” to support the decision in Windsor.  But notice this constraint did not affect the outcome of the case, only the reasoning and the current meaning of the precedent.

There may be other constraints – a sense of what the culture of lawyers would accept as a constitutional arguments might be one – but I believe the above three are the main ones.  Given the weakness of the constraints, one might ask why judicial opinions and law review articles do not look like simple statements of political preferences. Instead, they read like inquiries into the legal materials.

One cynical way to view this issue is that the reference to legal materials is just a lot of window dressing or misdirection (to mix metaphors) that obscure what is really going on.  Another possibility is that the discussion of legal materials is a necessary part of the analysis – to ensure that the text and the precedents do no actually block a decision.  So it is not irrelevant, although it may not be the key consideration.

While I think there is something to be said for each of these possibilities, another possibility is even more interesting.  It may be that the legal materials have more of a constraint the less one cares about the result on political grounds. Thus, when the justices decide cases involving mundane issues, one would expect the legal materials to matter more. When the justices decide hot button issues, the materials matter less –quite a bit less.

One way to think of the way in which a nonoriginalist liberal activist’s political preferences fit into the law is as if the political preferences are the lawyer’s client.  When a lawyer writes a brief for a client, he employs the legal materials to the extent possible to support his client, even if they don’t really support the client. Similarly, when a nonoriginalist liberal activist writes an article or decision to support his political principles, he employs the legal materials to the extent possible to support those principles, even if they don’t really support them.  That is why these opinions seem legal, even though in a fundamental sense, they are not.

While in this post I have discussed liberal nonoriginalists, I should not only pick on that approach. Libertarian and conservative nonoriginalists display many of the same problems, although there are important differences.  Perhaps I will discuss these approaches in the future.

(Cross posted at Liberty Law Blog)