Over at Balkinization, Jack Balkin has a quite interesting post about a distinct modality of constitutional argument: arguments from the future. As Jack says:
This idea– that we should decide constitutional cases based on how we think the future will think of what we do today– is what I call an argument from the future. It is an argument about history, but it is not an argument about original intention or original meaning.
Jack elaborates on the argument:
People often think about the future when they make moral choices in the present, not simply in terms of the likely good or bad consequences of their decisions, but in terms of how they imagine their choices will look to others later on. During the class, I pointed out that it would be very hard to write an opinion on the merits (as opposed to an opinion on standing grounds) upholding DOMA or state bans on same-sex marriage, because of the way the opinion might read 20 years later. Even if what you said seemed perfectly reasonable now, it might seem cruel, insensitive, or bigoted later on. As an example, I offered Justice White’s 1986 opinion in Bowers v. Hardwick. Like the New Dealer he was, Justice White did his best to explain that social and economic questions should be left to legislatures, not to courts. But he also said that that “to claim that a right to engage in [homosexual] conduct is `deeply rooted in this Nation’s history and tradition’ or `implicit in the concept of ordered liberty’ is, at best, facetious.” In other words, he was saying that it’s ridiculous to think that gay people would have a fundamental right not to be imprisoned for having sex with the people they love. When you put it that way, it sounds pretty awful.
You can see that, if history goes as you expect it will, some opinions are going to look really bad later on. Try writing the dissent in Brown v. Board of Education. At some point in the opinion, you will have to explain why it is reasonable for states to keep the races separate.
As with much of what Jack says, I agree with his view about how institutions actually function (as opposed to how they should function). Thus, he says:
There is little doubt in my mind that arguments from the future can be extremely powerful, especially to judges who don’t have to worry about keeping their jobs, but might well worry what their legacy will be. Indeed, the less you have to worry about your job security in the present, the more you might tend to worry about the future. (Think about what drives second term presidents, for example.).
But I wonder whether Jack is overgeneralizing a bit. If we assume a nonoriginalist methodology — where the judge is articulating the norms that he believes are the correct ones — then it is easy to imagine people judging him harshly. But if we assume an originalist perspective, then things look differently. If the originalism is of a form that significantly constrains the discretion of the judge — which is in the main not the type that I think Jack recommends — then it is much harder to blame the judge for not being morally enlightened. Of course, nonoriginalists may attempt to do so, but that is a harder argument to make. Similarly, one might blame the originalists if one believed that he had misread the originalist materials for political purposes, but that is not really originalism — instead, it is originalism’s misuse.
The best way an originalist could protect himself from these types of criticism is to do good originalist research and to make clear that he is not endorsing the morality of the provision. Consider Justice Thomas’s dissent in Lawrence v. Texas:
I write separately to note that the law before the Court today “is … uncommonly silly.” . . . If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Justice Thomas makes clear that he does not favor the law. Of course, one could go further than Justice Thomas does. An originalist justice (who had good reasons for saying that the 14th Amendment did not cover homosexual sodomy) could say: 1. I regard this law as immoral, 2. I would happily strike it down if the Constitution allowed me, and 3. I would support a constitutional amendment prohibiting it.
It would be hard to portray a justice who wrote an opinion in that manner as bigoted.