Why Conservatives Shouldn't Be Originalists
Strauss, David A., Harvard Journal of Law & Public Policy
The revival of originalism in the last generation has been, for the most part, the work of conservatives. That makes it easy to think that originalism and legal conservatism are natural allies. But in fact the alliance is an alliance of convenience, and, before too much longer, it is going to outlive its usefulness. Or at least so I will argue in this Essay. The cause of legal conservatives would be much better served if conservatives would abandon their allegiance to originalism and instead adopt an approach to constitutional interpretation that is based in precedent--an approach that seems to me vastly more sound in any event.
Any theory of interpretation, including originalism, can produce sharply different results, depending on who is using the theory. Of course any theory might be used in bad faith, but that is not what I mean. The point is that even good-faith interpreters can reach different results with the same theory. That is why one quick way to test the soundness of a theory of interpretation is to ask the question: What theory would you want your opponents to use, if you could assign a theory to them? If your political opponents were, say, appointing Justices to the Supreme Court, would you want those appointees to believe in originalism, or in some other view, such as one based on precedent? It seems to me that once you ask that question, you are going to conclude that a precedent-based approach is superior to originalism, even if you have conservative inclinations. (1) The reason is twofold: originalism makes it too easy for people to find, in the law, the answers they are looking for; and originalism causes people to hide the ball, to avoid admitting, perhaps even to themselves, what is really affecting their decisions.
There are at least three reasons why originalism, contrary to appearances, in fact imposes only a very uncertain limit on judges and leaves them a great deal of latitude to find, in the original understandings, the outcomes they want to find--something that, as I said, may be fine if you want those same outcomes, but is not fine if your opponents are running the show. The first is what might be called the problem of ascertainability. At least when you are dealing with old constitutional provisions, which nearly all the controversial provisions of our Constitution are, it will be very hard to do the historical work needed to determine what the original understandings were. Partly this is just a technical problem of becoming conversant with all the relevant materials. But the greater problem is knowing what inferences to draw from those historical materials. Especially in dealing with highly controversial issues, ascertaining the original understandings will routinely require a thorough immersion not just in the context of the specific debate but in the culture of the time. It is a lot to expect a busy judge to do that competently, and it will be all too easy to seize on any evidence that supports the view of the Constitution that the interpreter himself prefers.
Let me give an example of just how intractable this basic problem of ascertainability is. In a terrifically interesting law review article, Judge Michael McConnell has argued that, contrary to the conventional wisdom that was entrenched for a generation, Brown v. Board of Education (2) was consistent with original understandings. (3) I'm not sure Judge McConnell is correct, but let's assume he is. Now consider the following: In 1953, the Supreme Court asked the lawyers in Brown to brief the question of what the framers of the Fourteenth Amendment understood it to say about school segregation. (4) The best lawyers and historians in the country were engaged in the project of trying to find an originalist justification for the outcome they desired, which was the unconstitutionality of segregation. They spectacularly failed. The opinion in Brown begins with what can only be read as a concession that the original understandings do not support the conclusion the Court reached, that the Fourteenth Amendment forbids racial segregation. …