Ed Whelan Joins In

JB

Over at NRO, Ed Whelan has offered a series of posts commenting on my exchange with Matthew Franck. (Hat tip once again to Jonathan Adler over at the Volokh Conspiracy.) Ed makes three key points, each of which is ultimately about the same thing-- he wants to restrain judges and leave decisions to the political process. As I explained in my exchange with Matthew Franck, this is all very well and good, but it is in some sense orthogonal to the debate over originalism. In addition, Ed's version of originalism has many of the problems I identified in my original articles.

Ed argues that the distinction I draw between original meaning and original expectations is a false dichotomy. But the version of originalism he offers merely restates the dichotomy in much the same way that I would have. Borrowing from Gary Lawson and from John McGinnis and Mike Rappaport, Ed argues that we are not interested simply in the psychological states-- intentions and expectations-- of people who lived at the time of the adoption of a particular constitutional text (we must remember that different parts of the Constitution were adopted at different times.). Rather, we are interested in how a fully informed audience of hypothetical people living at the time of adoption would have applied the text. What actual people thought, believed, and expected is merely evidence of what this hypothetical audience would have thought, believed and expected. So far, so good.

In addition, Ed's argument suggests, we are not interested merely in applications per se but in the principles that the hypothetical generation would have applied and how they would have applied them. In order to determine these principles, we use evidence of how people at the time would have applied the constitutional text and their own statements of purpose and principle as data points that allow us to construct principles that will usually produce results roughly similar to the data points we started with. Thus, for example, if we want to know how to apply the principle of equality guaranteed by the Fourteenth Amendment's Equal Protection Clause, we should use original expected applications and explanations of principles and purposes offered by members of the adopting generation as evidence of what a hypothetical member of that generation would have judged constitutional or unconstitutional.

Because we are dealing with a hypothetical audience rather than an actual audience (i.e. one with limited factual knowledge), there may be some differences, but, as McGinnis and Rappoport explain, if the number of differences between our principles and original expected applications becomes too great, then that is strong evidence that we have chosen the wrong principles or described them at the wrong level of generality. In particular, McGinnis and Rappoport argue, the generation that produced the Fourteenth Amendment might have gotten the facts wrong, and might not have known about new technologies, but we should not assume that they were mistaken about morals or values. If they thought that the guarantee of equal protection was consistent with very limited rights for married women then the principles we construct should account for that value judgment.

I'm happy to add this theory-- call it hypothetical expectations originalism-- to the list of possible originalisms, but it isn't really very different in practice from what I've called original expected application. Indeed, Ed reads me far too narrowly: I've always assumed that someone like Scalia would be interested not merely in the results that people expected but also their reasons for expecting them, and I've always assumed that one should extrapolate from historical understandings to deal with cases of new technologies and changed factual circumstances. I've never found the "originalism is wrong because people in 1787 didn't have radios" argument very convincing. I think Scalia's view that we should extrapolate from what we know about the adopting generation's assumptions to take new technologies into account is eminently sensible.

But even if we adopt all these bells and whistles, Ed's version of originalism still has all the same problems that I identified in my article. It can't explain why the Fourteenth Amendment requires colorblindness-- the history simply doesn't support it. It can't explain why cases like Loving v. Virginia are correct, because the adopting generation would have seen laws banning interracial marriage as a question of social equality, not civil equality, and therefore untouched by the Fourteenth Amendment. The evidence also suggests that Congress thought it could make grants to free blacks (including blacks who had never themselves been enslaved) without running afoul of the Constitution, and it suggests that Adarand, Croson are wrongly decided. Ed's model can't explain the modern sex equality cases, or, for that matter, much of modern First Amendment jurisprudence, including the commercial speech cases.

Ed may not have much of a problem with that. His view may be that Adarand and Loving v. Virginia are wrong, and so too are all the modern sex equality cases, the commercial speech cases and most of contemporary first amendment doctrine. His view may be that all of this should be left to the political process. If so, that's fine, but I'd like to hear it from him. It will help me understand where we actually agree and disagree. If he thinks that these cases are still correctly decided, I'll need to hear a bit more about the history he is relying on. My investigations in these areas, particularly in the areas of the Fourteenth and First Amendments, suggest that he has some explaining to do.

Ed's larger point, I take it, is that if we want to apply our present day notions of equality and freedom of expression, we can enact our values through the democratic political process. That is, if we are more egalitarian than previous generations, we should use the political process to pass laws that enact our present day values. The problem is that if you adopt Ed's model of original meaning originalism the federal government doesn't have the power to pass much of this legislation. Under Ed's version of original meaning it's not clear why the New Deal cases like Darby and Wickard are correctly decided, and it's certainly not clear why the Civil Rights Act of 1964 was constitutional. If Ed has views on this, I'd love to hear them but I have to say that I'm pretty skeptical. Originalism of the kind he seems to be contending for, it seems to me, would mean that the federal government would not have had the power to dismantle much of the edifice of Jim Crow in the South, not to mention the power to pass laws protecting women or the disabled from discrimination. His version of originalism would generate a federal government that could not enact today's values.

If I am skeptical about this, so too is the Justice Ed clerked for, Antonin Scalia. To his credit, Justice Scalia has admitted forthrightly that he is only a "faint-hearted" originalist because he accepts the New Deal settlement, and, one presumes, the constitutionality of the 1964 Civil Rights Act. If Ed is also a "faint hearted" originalist, I'd like to know that as well. It will help me understand where he is coming from and where we actually agree and disagree.

As I pointed out in my original article, if you are a faint hearted originalist of the Scalian sort, you have to continually leaven your respect for originalism with all sorts of non-originalist precedents (non-originalist, that is, from the perspective of Scalia's theory, not mine). In fact, the number of these precedents just gets larger and larger over time. And then you come to the embarrassing question of why you want to keep some non-originalist precedents around and even extend them, and not others that you would be happy to overrule. Why go on and on about Lawrence v. Texas if you are going to extend the commercial speech cases, for example? Why make such a fuss about Griswold and Roe if you are going to keep Loving v. Virginia and Adarand? Why fulminate about the Violence Against Women Act if you are going to keep the Fair Labor Standards Act and the Civil Rights Act, and-- dare I say it-- the powers of the modern Presidency? It is very hard to escape the conclusion that the "faint-hearted originalist's" judgments of what to keep and what to discard are being subtly-- and sometimes not so subtly-- influenced not by the values of the adopting generation, but the values of the "faint-hearted originalist" judge.

One thing you can say about my text and principle approach is that you don't have to engage in these shenanigans. You don't have to keep telling everyone what a very committed originalist you are while you conveniently disregard your announced methodology with respect to most of the existing case law. I think that if you are going to be an originalist you should be consistent about it. This is what I am trying to do. Ed may not like my version of originalism, but he should understand how it tries to offer a consistent commitment to the original meaning of the constitutional text and its underlying principles.

And this brings me back to what I think is Ed's real objection. He is worried that my theory of text and principle does not constrain judges in the way he would like to constrain them. That is, he is really worried about judicial restraint, not fidelity to original meaning.

But my point-- which I have made repeatedly in my articles-- has been that originalism does not and cannot constrain judges all by itself. Originalism is a theory of fidelity in interpretation, not a theory of judicial review, and it is certainly not a one-size-fits-all method for ensuring judicial constraint. It is the bedrock or framework on which judicial practice should build. Judicial practice means starting with text and principle but not ending with it. Judges should consult all of the standard modalities of legal argument to flesh out and implement original meaning. These modalities include enactment history, expected applications, structural arguments, precedents (both judicial and non judicial), and the opinions and views of previous generations about the best interpretation of the constitutional text. In my view originalism is a framework that rules some interpretations out of bounds, but does not do most of the work of deciding specific cases. It leaves a great deal to be filled in by judges doing what judges normally do-- reasoning from the traditional modalities of legal argument. In addition, as I describe in my article, there are structural features-- like the appointments process and the fact that the Supreme Court is a multimember body-- that keep decisions within the mainstream in the long run.

Ed's version of originalism, by contrast, tries to do too much. That's why his method produces all the problems I have mentioned. My fear is that if Ed's method is the right one, then nobody who serves on the federal bench-- Justices Thomas and Scalia included-- can be a consistent originalist today, in which case it is very difficult to know what the debate is all about. By contrast, I am trying to give an account of originalism that is both faithful to the Constitution and that not only judges, but also ordinary citizens, can use.
Posted 8:56 PM by JB [link]