Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
The Senate hearing on the nomination of Amy Coney Barrett to the Supreme Court shows that we effectively have two different Constitutions today, because the interpretive methodologies of Democratic and Republican political actors diverge so dramatically. Republicans embrace originalism as a mode of interpretation. Democrats aspire to a method that bends the Constitution toward “the moral arc of the universe” where that arc traces the parabola of progressive politics.
The implications of this divergence are profound both for the nation and for academic debates over originalism. We are in a period of political polarization unprecedented since at least the New Deal and probably since the 19th century. Successive waves of partisanship have now engulfed our fundamental document, threatening a kind of legal instability we have not seen in the last 150 years. It will likely get worse, particularly if Democrats go through with threats of court packing, which will inevitably beget more and more court packing, turning our highest tribunal into something more resembling the British House of Lords. Academically, the dramatic divergence shows that the positive argument that originalism should be followed simply because it is our law is inadequate because high officials do not agree on the rule of recognition—that is, the standard by which we determine what constitutes constitutional law.
One Hearing, Two Constitutions
The hearing was, of course, full of the posturing and cynical maneuvering that politicians bring to any televised event, particularly one so close to an election. But it was genuinely illuminating on the parties’ professed approach to interpretation, even though those approaches would be applied inconsistently by many politicians. The Republicans all affirmed some version of originalism or suggested following the Constitution as written, sharply separating law from politics and policy.
The Democratic Senators on the Judiciary Committee, in contrast, have never been as explicit in simultaneously rejecting originalism and embracing an expressly progressive jurisprudence. Perhaps the reason was that the jurist closest to an avatar of progressivism on the Court—the notorious RBG—had just died. Senator Mazie Hirono called her “our champion.” Other Senators used her legacy to describe the kind of constitutionalism they favored. Senator Whitehouse noted that she “bent the arc of the moral universe toward justice for all Americans.” Senator Amy Klobuchar talked about how Ginsburg had moved America forward and that confirming Amy Barrett would move America backward. These comments are typical progressive tropes for legislation, but here they are applied to constitutional interpretation: Constitutional meaning is not found by studying the past, but by projecting a glorious progressive future.
Other Senators were more explicit in their critiques of originalism. Senator Chris Coons said originalism would roll back important constitutional commitments to liberty and privacy, and implied it would create a polity unrecognizable to “most Americans.” Recall that at the last hearing of a justice nominated by a Democratic President, Elena Kagan said “We are all originalists” without any pushback from Senator Coons or from any other Democrat.
Most Democrats’ lines of questioning were also unapologetically policy-oriented—so much so that at times the confirmation hearing resembled one on health care legislation. Picture after picture of an American with a disease that Democrats claimed only the Affordable Care Act had enabled to be cured was shown on national TV. Of course, this focus was prompted in part by electioneering, but it also implied a kind of jurisprudence—one in which good consequences (where good is defined by a progressive ideology) should guide the resolution of constitutional cases.
Even Senator Sheldon Whitehouse’s wacky theory that the judges nominated by Trump were the result of a conspiracy by a group of wealthy donors led by the Koch brothers makes some sense in progressive constitutional iconography. If the universe has a moral arc that the Constitution should follow, only evil interests could be holding back its natural ascent.
This complete division in jurisprudence foretells a bumpy road ahead for the Court and the nation. It is a difference that cannot be papered over by some methodologies that might, if consistently practiced, have once promised greater cross-party agreement. Originalism is not a jurisprudence of judicial restraint, but one that gives effect to the Constitution’s meaning, at least when original methods allow judges to come to a clear and convincing resolution on that meaning. And progressive jurisprudence, as Democratic Senators see it, encourages restraint only when the legislative objectives are progressive. Nor is progressive jurisprudence interested in protecting precedent generally, only progressive precedent. At the hearing, Democrats clearly wanted Roe v. Wade to be retained, but many other precedents, like Shelby County v. Holder and Citizens United, overruled, because of their bad (from a progressive viewpoint) results. The question of what role precedent should play in an originalist jurisprudence is an unsettled one, but originalists are generally agreed that it must take a back seat to original meaning in many instances.
Democrats who justify court packing often do so because of the claimed unfairness of the process that did not confirm Merrick Garland and yet is about to send Barrett to the Supreme Court. But the real reason is the jurisprudential chasm that divides them from many, if not a majority, of the originalist justices now on the Court. At a time when progressives are in the ascendancy in the Democratic Party, the Court in their view is an intolerable bastion of reactionaries who look to the past for their principles. And even if, as is likely, court packing cannot make it through Congress, if elected, Biden will nominate justices much more committed to progressivism than most Democratic nominees in the recent past. Just as we will no longer hear that the “era of big government is over” from a Democratic President, we will not hear that “We are all originalists now” from a Democratic Supreme Court nominee.
The clash of constitutions displayed at the hearing also has implications for the debate about how we ought to justify originalism. Will Baude and Stephen Sachs, two excellent young scholars, have suggested a positivist basis for originalism. According to their argument, we should follow originalism because it is the law in the sense that the great positivist H.L.A. Hart meant law. That is, originalism is the rule of recognition by which officials determine the law. To be sure, Baude and Sachs concede there may be disagreements about exactly what originalism requires, but they claim that there is a consensus in its favor among judges. They support their views largely by reference to Supreme Court opinions where they argue that justices—even modern left-liberals—gesture to originalism. Mike Rappaport and I have both criticized this argument, suggesting that in many important cases, justices fail to make good-faith efforts to follow originalism.
But judges are not the only officials responsible for determining the content of the Constitution, as Baude concedes. Legislators and presidents are also high government officials who make such determinations all the time, and who implicitly or explicitly embrace a rule of recognition. And the rule of recognition guiding the important officials of the Democratic Party today is emphatically not originalism. This sociological fact (and the Hartian view of law is ultimately rooted in such facts) also counts heavily against the notion that there is an official consensus in favor of originalism.
That lack of consensus does not mean we should abandon originalism. Originalism is certainly an important contender for the rule of recognition, as Michael Ramsey has observed, and the Supreme Court has at times in our history regularly followed it. But to justify originalism as the strongest contender we need to appeal to normative arguments of the kind that Mike Rappaport and I and others have made. Originalism is the best rule for interpreting the Constitution, even if some diverge from it.
The difference between our parties on this fundamental issue for our fundamental law makes such normative appeals even more important. They are the kind of arguments that may help restore a consensus for originalism and make the Constitution more of an anchor of stability than a source of partisan animosity.