Tuesday, February 28, 2017

Originalism as Old and New, Part III: Solving the Puzzle? (With thanks to Richard Re)

Richard Primus

This post is my third (and, I predict, my last) arising out of an observation that I made at a recent conference at the Center for the Study of Originalism.  The purpose of this post is to note an important suggestion by Richard Re—one that might solve the central puzzle of this conversation by pointing to a miscommunication between me and a number of my originalist interlocutors. 

My first post noted that it seemed to me that a significant number of the self-identified originalists at the conference were of the view that originalism is an interpretive theory that is still relatively early in its theoretical development and that has not yet been put into practice.  One of the important corollaries of that claim, as I understand it, is that the virtues of originalism cannot be soundly measured by reference to what courts up until this point in history have actually done when they have applied, or purported to apply, original meanings.  To be sure, constitutional history is replete with examples of judges justifying their decisions by reference to original meanings.  But as I understand the idea, originalism—or, more particularly, a properly skilled and theoretically sophisticated originalism—does not yet have enough of a track record to enable the method to be judged on the basis of how it works out in practice. 

And then I wrote this:

“I grew up hearing people say that communism had never been tried, either, and perhaps there's a cautionary tale in that comparison.  Sometimes an idea is worth giving up on even if its core supporters don't believe it's yet been fully put to the test.  But perhaps the comparison is misleading: just because people have made the never-been-tried argument as a way of not coming to grips with the problems in practice of one idea doesn't mean that every use of never-been-tried is similarly flawed.”

After my initial post, a few originalists who had attended the conference said (either privately to me or publicly) that they suspected I’d misunderstood something.  Their responses mostly took (some form of the) view that originalism is in fact a practice with deep roots in American jurisprudence, rather than something new and untried.  A post by John McGinnis is a good example.  After hearing these responses, I wrote a second post speculating about why my perception of the prevalence of what I called the “never-been-tried” view differed from that of several originalists who had attended the conference.

Now the new development.  Richard Re, who attended the conference, has suggested to me that the root of the apparent difference in perceptions is likely an ambiguity in referring to originalism as something that hasn’t been tried.  Re points out that in the context of my initial post, “never-been-tried” is a shorthand for something like “not yet conducted with sufficient persistence and proficiency so as to let its record of conduct stand as a fair test of what the theory can deliver if carried into practice properly.”  That’s in fact what I intended it to mean, as the reference to the analogous claim about communism suggests.  But Re points out that people could also take “never-been-tried” to mean that something is so novel that nobody has even attempted to put it into practice yet.  And Re is certainly right that that could be a reasonable understanding.  Indeed, on a literal reading, “never-been-tried” carries exactly that meaning.   

It is certainly not the case that nobody has ever tried to do originalism and to do it properly.  So it’s understandable that people who took me to be saying that many originalists seem to think that the idea of deciding cases on the authority of original meanings is something new under the sun would have reacted with surprise or confusion—or simply by thinking that I was wrong to think that any significant number of originalists held such a view.  To the extent that my use of the “never-been-tried” meme fostered that misunderstanding, the responsibility for the confusion is mine. 

But Re is right about what I intended to convey: not that a significant number of originalists claim that regarding original meanings as authoritative is new, but that a significant number of originalists claim that originalism has not yet been done by courts with sufficient persistence and proficiency so as to generate a record of performance on the basis of which one could judge whether originalism in practice delivers the set of desiderata (e.g., predictability, constraint) that many originalists claim as virtues of their preferred method.  It remains my understanding that a nontrivial proportion of academic originalists holds something like that view. 

To come a bit closer to the ground: Many originalists argue that originalism is a good theory at least in part because it has the capacity to constrain judicial decisionmaking better than other methods can and, perhaps relatedly, because it has a greater capacity than other methods to keep the law stable.  Several critics of originalism (including me) have argued that there isn’t much evidence to support these claims.  If one looks at how courts have actually behaved, it’s not at all clear that judges are more likely to agree with one another when they traffic in original meanings than when they deploy other methods, nor is it clear that deciding cases by reference to (judicial perceptions of) original meanings is a better formula for holding the law stable than it is for legal innovation.  The significance here of the view that originalism has not yet been done by courts with sufficient consistency and proficiency to allow the record of judicial practice to furnish a fair test of originalism’s capacities is that it enables those originalists who wish to do so to demur to this criticism.  OK, they can say, maybe we haven’t seen a demonstrated tendency of originalism to constrain judicial decisionmaking more than other methods do.  Yes, Heller was 5-4, and the lineup was pretty much what you’d expect if the Justices had decided the case without plumbing original meanings.  But the Court’s division in Heller isn’t evidence of originalism’s limits, because at least some of the Justices weren’t doing originalism properly.  (The claim could be either that the dissenters weren’t in good faith about their analysis or else simply that they were bad at it.)  More broadly, the overall judicial record doesn’t furnish such evidence, because the courts in general haven’t done originalism well enough and consistently enough to let us see what would happen if originalism were done consistently and well.  That’s the demurrer.  And the ability to demur this way is important precisely because it means that these originalists don’t have to contest the claim that, on the available evidence, it’s hard to see that originalism actually does the work that many of its advocates claim it will do.

If originalism hasn’t yet been done consistently and well enough to furnish a record on which its actual capacities can be judged, it might follow that originalism should be given further opportunity to refine itself so that it can be allowed a fair chance to show its virtues.  Alternatively, maybe it’s unrealistic to think that courts could do originalism in a substantially more consistent and proficient way than they’ve done it up until now.  In that case, originalism’s record to this point, such as it is, is the record on which the method must be judged.  I have a view on that issue, of course.  But resolving that issue isn’t the main purpose of this post.  The main purpose of this post is to highlight the ambiguity in the “never-been-tried” meme, to note that that ambiguity might well underlie the confusion in this conversation, and to thank Re for pointing it out.

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