Academic journal article
By Strauss, David A.
Constitutional Commentary , Vol. 22, No. 2
Some legal principles are purely conventional. Within a wide range of possible rules, it doesn't matter much what the rule is; we just have to have a rule. "Traffic keeps to the right" is a customary example. But other legal principles are not just conventional. Some alternatives are much better than others. If the question is whether religious minorities should be subject to persecution or whether battery should be a tort, it is not enough just to have a rule. Legal principles addressing questions of that kind are unavoidably based on judgments about morality, social policy, and similar matters. You can't have a system of tort law, or a system of religious freedom, or many other things that the law provides, without making such judgments.
The controversy arises over the question: who should make those judgments? When the issue is one of constitutional law, originalism, as I understand it at least, provides a clear answer: those judgments were authoritatively made by the Framers of the Constitution. Originalists have to say who counts as the Framers, and they have to have a way of ascertaining what judgments that group made, but for present purposes those are details, and I will assume that originalists have an adequate way of doing both those things. The point is that according to originalism, the interpreter does not make controversial judgments about morality and policy; his or her job is to implement the judgments made by someone else. There may be versions of originalism that are more equivocal on this point, but at least in its purest and most comprehensive form, originalism allows no room, at all, for the interpreter to make such judgments. Indeed that seems to be the source of much of the appeal, implicit and explicit, of originalism.
Precedent-based or common law approaches to constitutional interpretation are different because they allow for the interpreter, within a certain range, to be influenced by judgments about morality, policy, fairness, and similar concerns. No sensible common law approach denies this. Maybe Christopher Columbus Langdell thought that precedents constitute a closed axiomatic system from which legal outcomes could be deduced on every occasion, but no one else thinks that. Benjamin Cardozo's The Nature of the Judicial Process, as good a candidate as any for a canonical statement of the common law method, is explicit in recognizing the role that judgments of morality and policy play in a precedent-based system. (1) Unlike originalism, a precedent-based approach does not deny that the moral judgments of the interpreter--not just the judge, but the legislator, President, or citizen who takes a position on a constitutional issue--are sometimes a legitimate part of constitutional interpretation.
What a precedent-based system does is to define and limit the role that such judgments play. Originalists often criticize precedent-based approaches on the ground that they impose only a nominal limit, not a real limit, on the use of the judge's moral and policy judgments. I think that is manifestly incorrect: many constitutional principles that are morally appealing are simply off limits, because of precedent. No judge, however convinced of the immorality of, say, the war in Iraq, or the most recent set of tax cuts, would seriously consider holding them unconstitutional. Precedent sets the terms of debate in countless areas of constitutional law. Precedent limits judges in constitutional cases just as it has for a long time limited judges in cases about contracts, torts, and property.
The important point, though, is that an originalist must deny that he or she is moved at all by the moral attractiveness of a position. A common law constitutionalist can forthrightly acknowledge that part of the reason for adopting a certain view is that that view is morally right. The immorality of Jim Crow segregation may not be sufficient to sustain the lawfulness of Brown v. …