The idea that either pragmatism or originalism can restrain judges meaningfully in hard cases is illusory. Professors McGinnis and Rappaport have suggested that pragmatism and originalism should be thought of as friends. (1) The friendship they provide is pallid and unsatisfying, however, because both promise more than they can deliver.
Both pragmatism and originalism are defended by their most prominent champions as ways of promoting democracy and judicial restraint. Judge Easterbrook, one of our most distinguished originalists, gave that defense when he said, "When originalism fails, so does judicial power to have the final say. And democracy remains." (2) Justice Breyer's new book makes a similarly passionate consequentialist defense of pragmatism as a way of promoting both values of democracy and restraint. (3)
After studying the hard cases and analyzing the results of originalism and pragmatism, I am not convinced that either theory consistently follows through on this promise. Therefore, it seems better for those who care about promoting democracy to abandon these abstract, and ultimately unproductive, methodological debates and to embrace openly a tradition of bipartisan judicial restraint.
This is the tradition of Thayer, of Holmes, of Frankfurter, and most recently of the lamented Justice White. (4) The tradition has no consistent defenders on the current Supreme Court. It would require deference to democratic processes in most situations, striking down very few federal or state laws. Neither originalists nor pragmatists have shown a willingness to embrace such restraint. So when Professors McGinnis and Rappaport challenge us to find a better theory, (5) the theory is clear: defer, defer, defer.
I should confess that I am something of a recovering originalist. I was a student of the wonderful Professor Akhil Amar at Yale and imbued his infectious enthusiasm for the promise that originalism, when applied in a principled way, might lead to genuinely bipartisan results. Learn the history better than the judges, said Amar, and you can be more principled than the originalists themselves. (6) I was caught on fire with the promise of that superb teacher. I took it seriously and devoted years of my early career trying to learn enough about the history of the Fourteenth Amendment to be able to interpret it in a principled way. Imagine then my earnest sense of disappointment and shock when I read the U.S. Reports and found in case after case no trace of the complicated history that Amar had taught me to learn. Instead, there was a deafening silence on all of the issues where one would have most expected it to be found.
In particular, I want to discuss three of these issues: affirmative action, federalism, and religion. There is no Justice on the current Supreme Court who has studied the history of the Fourteenth Amendment with the rigor that one should expect of a principled originalist. Few appellate judges have put in that dark and lonely work either.
There is, however, one judge in particular who has done that work. This is the esteemed Judge Michael McConnell. If I had to pick an Originalist-in-Chief, and if I could turn over the whole enterprise to a single person in the United States, it would be Judge McConnell. (7) He deserves bipartisan recognition for the scrupulousness and care with which he has studied the history and tried to apply it.
Should we not then be angry, indignant, and appalled that Judge McConnell's history, his insights, and his reminders of the complicated lessons that history teaches are absent from all of the most important cases in the areas I have described? First, consider affirmative action. A seemingly simple question is whether affirmative action is permissible in public contracting. (8) Is affirmative action in public contracting a violation of the original understanding of the Fourteenth Amendment? Judge McConnell has taught us not to ask whether there is a rule of colorblindness across the board for all state action. …