A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
A Neo Dworkinian Argument for Originalism
A while back I did a bunch of posts on the relationship between positivism and originalism. At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it. I am finally doing the post.
Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification. Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it. One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice. But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds. The overall best interpretation would be based on both fit and justification.
Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed. This type of originalism is both attractive normatively and does a reasonable job of fitting the practice.
First, McGinnis and I make a normative argument for originalism. The normative argument is that the Constitution (based on its original meaning) is a good constitution. Moreover, it is not surprising that is a good constitution, because the supermajoritarian enactment (and amendment) process that was used to pass it, is a desirable way of enacting constitutional provisions. Following the original meaning will lead to good results today because the Constitution is a good one. Certainly, following the original meaning is more desirable than allowing judges to depart from the original meaning based on what they consider to be the appropriate values.
Second, originalism does a reasonable job of fitting the practice. The original Constitution itself is best understood as requiring originalist interpretation. Subsequent interpretive practice – how the courts and others have actually interpreted the Constitution – is less originalist. My reading of Supreme Court history is that the Supreme Court made a strong effort to be originalist until the Civil War. It continued largely to be originalist until the early 20th century. Beginning in the New Deal, it largely abandoned originalism in reaching results. And then in the last generation or so, originalism has grown again on the Supreme Court.
The Supreme Court, however, never expressly repudiated originalism. Sometime it departed from originalism through precedent and other times it simply did not discuss the issue of original meaning. Given that my originalist approach allows for the following of some nonoriginalist precedent, this brings me closer to the actual practice than originalists who entirely reject precedent. Overall, then, I would say that the practice is at least intermediate between originalism and a repudiation of it, and it is possible that one might argue that it is even closer to originalism.
Given the mixed originalist/nonoriginalist character of the practice, the argument for originalism must rely significantly on justification. But in my view, the normative arguments for following the original meaning are up to the job.
Thus, a strong argument can be made that the best interpretation of our constitutional practice – based on fit and justification – is to follow originalism. Under this argument, then, the actual constitutional law in the US would be originalist. Judges who followed nonoriginalism would not be following the law. Of course, many people may disagree with my normative argument, but such disagreement comes with the territory of any theory, like Dworkin’s, that relies on normative argument.