Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
One of the difficult issues for originalism is what it means concretely for the United States Constitution. What actually is in the original meaning of the various provisions of the document?
I must admit that I find this to be difficult. If one has a sophisticated and open minded view of interpretation – which I like to believe I do – many clauses of the document are simply not clear, unless one has done the extensive historical research. Even then, the resolution of issues will often be a matter of judgment. Thus, it is sometimes difficult to make firm statements about the original meaning.
Of course, that people cannot be sure of the original meaning without doing the historical research does not mean that the original meaning would be unclear once one does the historical research. I am very confident, for example, that the original meaning of the Recess Appointments Clause is limited to vacancies that arise during the recess of the Senate, even though some people might not be sure of the matter before doing the historical research (and others even think the opposite after doing the historical research).
It is important to note that much of the fault lies here with nonoriginalism, not originalism. For the last several generations, judges and law professors have generally not been concerned about the original meaning of provisions and therefore have not undertaken the necessary research to understand these matters. But whatever the cause, I often feel frustrated about my inability to address the original meaning. So I often write like one of those two handed economists that Harry Truman complained about, who after making a point in one direction, would then, after saying “on the other hand,” make a point in the opposite direction. See for example here and here.
Yet, there are many cases where the original meaning appears to be clear. In a recent brief article, originalists Will Baude and Stephen Sachs make some claims about cases where the original meaning was clear and not followed:
In our theoretical work we’ve tried to avoid getting sucked into specific historical or doctrinal controversies, as that might detract from our arguments about theory. But perhaps the time has come to start naming names. Without having done the research ourselves, we doubt (say) that the original Constitution let states impair contracts on claims of “economic emergency”—or that this power was ever lawfully conferred since. We likewise doubt the pedigree of modern cases on executive agreements; jury numbers or unanimity; counsel comment on failure to testify; one-person one-vote; diversity jurisdiction for D.C. citizens; “commerce” regulation of wholly intrastate activity; [and] administrative adjudication of private rights. . . Maybe the cases are right despite our doubts, or at least tolerable under original doctrines of stare decisis.
I agree with this list of cases — and I could add to it. It would be interesting to see how many cases I could come up with.