In a recent post on this blog, Lawrence Solum praises Justice Ketanji Brown Jackson for “understand[ing] the dangers that judicial supremacy and living constitutionalism pose to democracy and equality—given the reality that conservative justices will dominate the Supreme Court for at least a decade or two.” Solum goes on to advance a relatively narrow critique of progressives who worry that Jackson’s approach will legitimate originalism. But his post naturally invites the broader question: If progressives cannot beat originalists, should they join them? More precisely, is originalism the best way to advance a progressive constitutional vision circa 2023?

The argument, which Solum himself has not made or endorsed, would go something like this. Under present circumstances, the standard progressive constitutional arguments will never persuade a majority of the Supreme Court. Originalism, by contrast, offers progressives a fighting chance on at least some issues—perhaps quite a lot, if Solum is right about “the emancipatory power of the Fourteenth Amendment.” Originalism also offers a potent tool for criticizing the “selective mix of history, tradition, and precedent” that Solum calls “conservative living constitutionalism.” But there is an obvious problem: If and when control of the Court shifts, all of the standard progressive reasons for rejecting originalism will regain their force, and the countervailing reasons for progressives to embrace originalism today will disappear. The logical implication is that progressives will be justified in abandoning originalism whenever they next constitute a majority of the Court. This is an originalism of convenience, not the "good-faith originalism" that Solum and other originalists advocate.

Yet this may be too quick. In addition to his narrow critique of progressive opponents of originalism, Solum’s post offers a capsule history tracing progressive originalism from Frederick Douglass through Justice Hugo Black to Akhil Amar, Jack Balkin, and Justice Ketanji Brown Jackson. This history is contestable, but it suggests a broader argument for progressives to embrace originalism. Perhaps the tactical advantages of progressive originalism under present circumstances are not an isolated case. Perhaps they are merely one illustration of the larger truth—captured by Solum’s historical account—that progressives have as much to gain from originalism as conservatives over the long run. Originalism will obviously not generate the result progressives favor in every case. As Solum puts it, “there is a price to be paid for good-faith originalism.” But perhaps, over the long run, progressives will do better according to their own lights by embracing originalism than they would by sticking with living constitutionalism—or by cycling between the two as circumstances dictate. Again, Solum himself does not make or endorse this argument, but it is one that we are likely to hear more of in coming years.

This is an argument for “good-faith originalism,” not just an originalism of convenience. But it suffers from the same essential problem. It is one thing to embrace originalism and sacrifice crucial progressive commitments like the right to abortion when conservatives control the Court and progressives have no realistic hope of doing better. But why should any progressive be willing to make that sacrifice when the composition of the Court changes?

The answer must be that abandoning originalism when it pinches would somehow make it impossible to achieve the benefits of originalism when it supports progressive outcomes. This could be true, but the mechanism that would make it so is far from obvious. Indeed, U.S. constitutional history is littered with theories forged in the crucible of earlier eras and successfully discarded when they had outlived their usefulness. Liberals famously abandoned their Lochner-era commitment to judicial restraint in the 1950s and 60s and are still reaping the benefits today. Conservatives are now in the final stages of abandoning their own earlier commitment to judicial restraint and will be reaping the benefits from this shift for decades to come.

In effect, the long-run historical argument proposes originalism as a truce or middle ground between conservative living constitutionalism and progressive living constitutionalism. Progressives will understandably view this proposal as favoring conservatives and regard it skeptically for that reason. But even apart from this objection, it is difficult to see how such a truce could constitute a stable equilibrium. Whatever attraction this proposal might have for progressives under present circumstances will diminish, if not disappear, when the balance of power on the Court shifts—just as the attraction of judicial restraint has diminished, if not disappeared, for contemporary conservatives. Knowing this, conservative originalists seem unlikely to trust the sincerity of progressive converts to originalism.

Among other things, this is a problem of credible commitment. It is very difficult for contemporary progressives to credibly commit their successors (or future selves) to stick with originalism two or three decades down the road. This problem is compounded by the external forces that determine the composition of the Supreme Court. Even if today’s progressive judges and intellectuals embrace good-faith originalism and teach their clerks and students to do the same, future progressive policy demanders will insist on progressive results—and the appointment of justices who will reliably produce them.

This is very similar to what has happened on the conservative side in recent decades. Given these dynamics, it would be quite surprising for the conservative originalists on today’s Supreme Court to reward progressive converts with more than the occasional token victory. But if they do, progressives will have cause to worry about conservatives abandoning originalism for “common-good constitutionalism” or some close cognate. Indeed, this already seems to be a live possibility.

To overcome these difficulties, defenders of progressive originalism would need either to identify an argument that unites progressives and conservatives or to devise some other solution to the credible commitment problem. Solum hints at the former when he condemns “juristocracy, whether conservative or progressive” as “a profound threat to the rule of law.” As for the latter, progressives will obviously have powerful incentives to cast their arguments in originalist terms for the foreseeable future. This shift could well have the effect of legitimating originalism that some progressives are already decrying. At a minimum, progressives who embrace originalism for short-run tactical reasons might find it costly to repudiate originalism down the road. There is also the chance that progressive originalism will resonate with the public. Together, these factors might serve as catalysts for a feedback loop making originalism increasingly attractive, at least at a rhetorical level, across the ideological spectrum.

On the other hand, rule-of-law arguments for originalism have been around for a long time without persuading many progressives. Nor is originalism the only plausible alternative to the “juristocracy” Solum associates with living constitutionalism. Thayerism, popular constitutionalism, and weakening or abolishing judicial review all fit this bill, and many progressives already find them appealing. The existence of these competing strategies would make it more difficult for the two sides to coordinate on originalism as a truce, even if that truce were superior to the status quo for both progressives and conservatives. This raises the possibility that the optimal strategy for progressives in the aggregate may differ from the optimal strategy for individual progressives at the current margin.

There is also the age-old question of originalism’s malleability. If both sides can often, or almost always, marshal plausible originalist arguments to support their preferred outcomes, conservative originalists will seldom feel compelled to reach progressive results and vice versa. The same goes if original meaning is indeterminate, or even conceptually incoherent, on most contested questions, as Richard Fallon has recently argued. Either of these possibilities would obviously undercut the attractiveness, and the practical significance, of originalism as a truce for both sides.

These may seem like pragmatic or strategic, rather than normative, objections. But the appeal of originalism as a truce depends on good-faith originalism producing better long-run results for progressives than the available alternatives, including fair-weather or tactical originalism. That is a practical question with strategic dimensions. If conservative originalists today distrust the sincerity of progressive originalism or are simply unpersuaded by most progressive originalist arguments on the merits, progressives will not gain much by converting to originalism in the short run. Meanwhile, they will have much to lose by sticking with originalism if and when control of the Court shifts in their favor (assuming that originalism is not infinitely malleable). Any persuasive case for good-faith progressive originalism will need to find a path around these difficulties.

This challenge is a general one for constitutional theory, as I explained in two posts on Supreme Court reform last week. For a fuller discussion, see my new draft essay, “What is the Matter with Dobbs?”