A Note on Originalism and Judicial Practice

JB

Brian Leiter has offered some very interesting remarks about originalism and constitutional interpretation that are well worth reading. He points out that:

When it comes to constitutional interpretation in the United States, certainly at the highest appellate levels (where precedent imposes the least constraint), there is no convergent practice of behavior by judges: they tend towards opportunism (a point famously captured in my colleague Philip Bobbitt's 1982 book on Constitutional Fate, though that was not his primary aim). Sometimes they will appeal to original intent, sometimes to original meaning, sometimes to structural considerations, sometimes to plain meaning, sometimes to animating moral principles, and so on.

From this Leiter infers:

There is, then, often no legal obligation to read the Constitution one way rather than another in the U.S. A defense of originalism is, then, in the American context necessarily a theory about what judges (morally) ought to do, and, as such, it must be grounded in some broadly moral considerations. The most pertinent of these, within the liberal political framework that I will take for granted here, will be those that bear on the question when courts are justified in exercising authority over individuals or when they are justified in bringing the coercive power of the state to bear against individuals. (Dworkin, of course, thinks this last question is decisive about the nature of law, but he is mistaken about that for reasons we do not need to belabor here.) For purposes here, I'm going to treat the two questions as interchangeable. (Maybe there is a reason I shouldn't?)

I'm not sure that this is the central question that originalism (or, indeed, any theory of constitutional interpretation) needs to answer. The proper question it seems to me, is what is required of legal officials in general in order for them to be faithful to the Constitution as the basic law of the country. That is, if we assume that the rule of recognition in the United States is that the U.S. Constitution is the supreme law of the land, that it trumps any other law to the contrary, and that all government officials, whether local, state or federal, must not act contrary to it, the question of interpretation is what they have to do in order to obey that legal requirement. This is not the same thing as what justifies courts in exercising coercive power over individuals, because courts do not exhaust the set of legal officials who must conform their conduct to the requirements of the Constitution.

Why do I emphasize this? Because a key move in my theory of originalism is to separate out the question of interpretive fidelity from the question of institutional role. That is, one question is what the best account of the Constitution is, and a second question is how a person's institutional role shapes and limits how they might implement the answer to the first question. Lower courts, for example, must obey higher court precedents even if they believe those interpretations are incorrect; government officials must obey court judgments directly made against them even if they are based on faulty interpretations. On the other hand, legislators may vote for or against legislation on the basis of their judgments of the meaning of the Constitution independent of what courts say. Executive and legislative officials may disagree about the meaning of the Constitution and act accordingly, and courts may never pass on their disagreements. Much executive branch law, for example, is made in the OLC and not in the courts. Executive officials may also disagree with court decisions that are not directly binding on them as parties to the litigation. In this sense, the question of the proper interpretation of the Constitution goes well beyond what courts are supposed to do or not do with respect to individuals.

And it goes further than this: Leiter is entirely correct that theories of interpretation must be tied to theories of political legitimacy, which, I should add, are not necessarily the same thing as theories of justice. Depending on your theory of legitimacy, constitutional interpretation by citizens who are not government officials might be important. For example, both Frank Michelman and I take the position that the political legitimacy of the Constitution depends in part on whether or not citizens could reasonably understand the Constitution and constitutional system to be sufficiently worthy of respect to enjoy the benefits of political union even if the Constitution-in-practice as currently applied by legal officials fails this test. Under this conception of legitimacy, citizen interpretations of the Constitution are quite important, and the question of legitimacy is not settled by interpretations by legal officials. Indeed, political legitimacy may depend precisely on the differences between citizen interpretations of the Constitution and interpretations by legal officials. (Actually, both Michelman's and my views are more complicated than this, but for purposes of this discussion the differences do not matter).

I have argued that theories of constitutional interpretation must be based on the citizen's perspective and that the perspective of legal officials should be treated as a special case of the citizen's perspective. What this means is that the way interpretation is related to legitimacy may be somewhat different than the way that Leiter poses the question.

That is important to debates over originalism for many reasons, but here is one of them: Modern originalism arises from conservative legal movements that sought to critique what they regarded as liberal judicial activism. These originalists wanted their theory of interpretation do two things at once. They wanted their theory of interpretation to give criteria for constitutional fidelity and they wanted it to constrain judges and prevent judges from overturing decisions by legislatures and executive officials. My claim is that a theory of originalism can't do both of these things. It is an approach that helps give an account of why certain actions by officials are faithful or not faithful to the Constitution. Thus, it may provide a degree of legitimacy to their actions, no matter what justifications they themselves offer. (That is why Leiter is not quite right when he suggests that the diversity of judicial practice undermines the legitimating claims of originalism.) But originalism cannot serve as a comprehensive theory of judicial restraint, because originalism simply doesn't constrain in the most important (or contested) cases in the way that originalists hoped it would. (That is, originalism, properly understood, might be consistent with a range of results in contested cases, although particular practitioners might insist that some interpretations are more faithful than the others). Originalism is not primarily a theory of judicial practice, and if you try to make it so you end up distorting both originalism and judicial practice. That is not to say that originalism has nothing to say about how judges should do their jobs. It does. It just cannot do all the work that originalists like Bork or Scalia wanted it to.
Posted 4:56 PM by JB [link]