Over at the Volokh Conspiracy, Randy Barnett, as an aside, asks liberals the following question:
Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause?
In his U.S. Today Column, Glenn Reynolds picks up on the idea and explores various decisions that might be overturned based on a conservative living constitutionalism.
Barnett’s is an interesting question, which I believe has no simple answer. Let me explore a couple of possible answers.
One possibility is that liberals believe that the rule they advocate – originalism or nonoriginalism – will be followed by both liberals and conservatives. While they might prefer that conservatives be originalist and liberals be nonoriginalist, they must choose a single rule for both. And if forced to choose, they prefer that both be nonoriginalist to both being originalist.
Yet, it is not clear that liberals believe this. They may realize that they are unlikely to influence conservatives. They may therefore advocate nonoriginalism for both liberals and conservatives, realizing it is only going to influence liberals. They might criticize conservative originalists, but that is just as a way of arguing to liberals that they should be nonoriginalist.
But let’s imagine now that liberals are actually speaking to conservatives. Why might they favor nonoriginalism? Randy’s question brings to mind the strong conservatives that Glenn talks about – people who favor a political agenda that the liberal strongly dislikes.
But liberals might be “forgiven” for not taking the existence of such a justice seriously. They have not seen one for a very long time, if ever. At least in recent years, conservative nonoriginalists have looked different. Some of them have been strong believers in judicial restraint. And while such people might not enforce liberal nonoriginalist rights, they also won’t enforce conservative nonoriginalist rights. So they are not all that threatening to the liberal.
Another type of conservative nonoriginalist is someone who is a moderate conservative who might grow in office to become a liberal. Think Justice Souter or Stevens or Kennedy or O’Connor. Thus, they believe that a conservative nonoriginalist will end being a moderate or a liberal. Of course, here the causation may go in the opposite direction. It is not that nonoriginalists become moderate or liberal. It is that moderates or liberals are attracted to nonoriginalism.
Ultimately, my sense is that all it would take would be one or two strong conservative nonoriginalists to persuade liberals to change their views a bit. Liberals often favor judicial activism until they believe they are losing control of the court. For example, after Bush v. Gore, which was viewed as conservative judicial activism, people like Mark Tushnet, Larry Kramer, and Cass Sunstein advocated a much more limited judicial role. Thus, if there were strong conservative nonoriginalists, who were deciding cases aggressively that liberals did not like, they would be criticized.
But would liberals then criticize conservatives for being nonoriginalist? Perhaps, but I think only in part. Some of the criticisms would assert that these justices were being nonoriginalist, which is not the way conservatives are supposed to behave. But some of the criticism would turn on other grounds. Some of it would be criticizing the conservatives for not following precedent, which has tended to be liberal. And some of it would be criticizing the conservatives for their political views. So long as this multi-plank attack is effective, liberals will have incentive to maintain it, because will allow them to buttress both their liberal nonoriginalism and to criticize both conservative nonoriginalism and originalism.
In the end, liberals might prefer a conservative originalist to some kind of conservative nonoriginalists, but that does not mean they will say that clearly. Instead, the three prong attack above might be employed since it would allow liberal nonoriginalists to better achieve their goal of promoting liberal nonoriginalism.