The reason to be skeptical of judicial remedies for such a problem is that they closely resemble the constitutional equivalent of the CFPB.
I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay. The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it. Even so, I’m not persuaded– not yet anyway– to abandon the idea. I’ll try briefly to explain why (without purporting, in a short rejoinder, to answer all of the many questions raised).
Authority, Rationality, and the “Positive Turn”
First issue: why should anyone favor originalism anyway? I suggested that originalists have been concerned about two problems: authority and rationality. Non-originalist approaches to constitutional interpretation, by distancing current legal doctrines and decisions from the authoritative and mindful political decisions that produced the constitutional texts, squarely present both problems. But then so do expansive or flexible understandings of “original meaning” that may end up supporting outcomes that the enactors never contemplated and might have vigorously disapproved. Or so I argued.
Will challenges this answer to the “Why originalism?” question. The “fundamental justification for originalism,” he suggests, is not the desire to respect authority and promote rationality in our law; rather, “[o]riginalism is important because it’s part — and maybe more than just part — of our current legal practice.” It’s part of “our law.” Will calls this view “the positive turn” in originalism.
Now on one level I entirely agree with Will. Originalist inquiries and arguments are part of our legal practice; if they weren’t, we wouldn’t have the same interest in them. (Though non-originalist decisions are also part of our practice.) The “positive turn” conveys an insight that is important in ways we can’t explore here. But does this insight provide any justification for originalism? I don’t see how.
Suppose you ask me why I make important decisions by flipping coins, or consulting a horoscope, or studying the Bible. And suppose I respond, “I do it because that’s my practice.” My response may be true enough, but it doesn’t answer your question. You already know this is part of my practice– that’s why you’re asking about it– but you’re wondering if there is some justification for this particular practice which, as your question suggests, you find puzzling or problematic. And, without more, saying “It’s my practice” (or, basically, “I do it because that’s what I do”) fails to supply any such justification. The same is true, I think, for collective practices, including legal practices– including originalism.
In this respect, I don’t understand how “the positive turn” provides help with the familiar dead-hand objection, as Will thinks. Suppose I make all major decisions by speculating about and then doing what my great-grandmother Matilda would have advised, and you suggest that I’m being irrationally servile. I should think for myself, you say (parroting Kant)– make my own decisions. Suppose I respond, “I am making my own decisions. Granny doesn’t force me to do anything; I follow her advice only because I choose to do that.” My response will be true: ancestors (whether my great-grandmother or “the Framers”) can’t step out of the grave and compel us to do anything. But that observation does nothing to justify a practice of choosing to defer to them.
But maybe I’m missing Will’s real point here. Will may be arguing that the “new originalism” has managed to get itself accepted in our legal practice only because of its leniency in loosening up the constraints of the enactors’ concrete decisions. That’s why Justice Kagan and Justice Alito (and Jack Balkin, and Michael Perry) are willing to call themselves originalists, maybe– because their sort of originalism is only minimally restrictive. If this is what Will means, he may well be right. But this is like saying that Catholics (or communists, or conservatives) will be more acceptable to people who distrust them if they will just be less Catholic (or less communist, or less conservative). Well, maybe so, but . . .
The Primacy of the Constitutional Decision
We care about originalism because it figures in our legal practice, as Will says; but at least one reason we are justified in trying to make it part of our practice is that it addresses concerns about authority and rationality. That’s my impression, anyway. But then we can go on to ask what sort of originalism is most responsive to those concerns.
My proposal is that it would be helpful in this respect to focus not so much on the original meaning as on the original decision. (That’s a shorthand and somewhat unfortunate way of putting the point, but I hope it works for now.) All three commenters are skeptical; they think a focus on decisions would present the same possibilities, challenges, and risks of abuse that other versions of originalism do. Originalism has been invoked in support of some pretty problematic interpretations, yes, but the commenters think the only remedy is to do better, more careful, less tendentious originalist work.
Actually, I’m 90 percent in agreement with these comments, but I need to try to explain the residual 10 percent. Theorists of legal interpretation have used various analogies: to ordinances ordaining “No vehicles in the park,” to old recipes for fried chicken, to grocery lists, to signs declaring “Keep Off the Grass.” All of these examples involve communications. But it matters to interpretation, I think, what sort of thing is being communicated. A recipe? An instruction? A poem? In the case of positive enacted law, I suggest, what is being communicated is a political decision. And if that is so, our interpretations will be more sound if that is what we look for– for a decision, not merely a . . . “meaning.”
In this sense, decisional originalism is not a competitor, exactly, with either “intentionalist” or “public meaning” originalism (whichever you prefer). The suggestion, rather, is that what we should look for in the framers’ intentions or in the public understanding– what we should try to recover, or reconstruct– is not just an intended or publicly understood “meaning” but rather an intended or publicly perceived and ratified decision.
To be sure, enactors make decisions about words, as the comments correctly observe. But that description, while true in a certain sense, seems to me less than perspicuous. Much as it would be true but inapt to say that what writers do is make decisions about which letters on the keyboard to press.
Sometimes (as with the Obamacare law) legislators may never have read the words at all. Constitutional provisions are shorter, of course, and presumably most enactors will have read and thought about the words. Even so, it seems more cogent — more revealing of what is really going on — to say not that enactors decide what words to make law, but rather that they try to find words that will express their decisions. The political decision is primary; the choice of wording is instrumental. And our interpretations of the words should thus be guided by a search for the decision. (Or, if you prefer, you might say that this is the sort of meaning we should look for– the meaning of the decision.)
But now some concessions. As the commenters point out, a focus on decisions would not obviate the need to do the historical work, with all of the possibilities of indeterminacy, good faith error, and willful misconstrual that always attend such work. Also, a “decision” is not reducible to “expected applications.” As Steve correctly points out, enactors may decide to adopt a rule whose implications will depend on future facts. It is at least conceivable, as Mike says, that enactors could decide to constitutionalize some abstract “principle.” More generally, although the notion of a “decision” is utterly familiar, it is also complex and in need of clarification of the kind that philosophically sophisticated scholars like Larry Solum and Larry Alexander have provided for in notions like “meaning” and “text.” (Do you detect a plea for help here?)
So then, what is gained by urging a focus on decisions? My suggestion, once again, is that an emphasis on “decisions” might focus our attention on what we really care about (or should care about), and thus might do a better job of closing the authority and rationality gaps than other approaches seem to do. To be sure, decisional originalism might be stretched and abused just as other forms of originalism can be. My hope– I can’t quite call it an “expectation”– is that an emphasis on decisions would make these stretchings and abuses easier to spot, and thus to avoid (or resist).
Decisions and “Principles”
How so? As an illustration, consider one crucial example. It is true that enactors could decide to constitutionalize a “principle” — a “principle of equal regard,” maybe — and then we’d have the same possibilities and difficulties we have already. That could happen. But it seems unlikely. As we know from experience, it is relatively easy to read words in an old text as carrying a “meaning” containing some abstract “principle.” Indeed, prominent jurists and scholars find it next to impossible to read the words (of the Fourteenth Amendment, for instance) in any other way. It is harder, I think, to picture political actors making a political decision to enact some “principle” whose implications they only dimly foresee, and thus to authorize future adjudicators to enforce their own “conceptions” of what that principle entails.
Why? Well, think about it this way: on what assumptions would such an open-ended authorization to the indefinite future make political sense?
Suppose first that a generation of framers sees itself as privileged to occupy a sort of moral high ground; future political actors, they think, are likely to be less enlightened or less public-spirited. (I’ve argued elsewhere that the Philadelphia framers understood their situation in this way.) These framers would presumably want to build as much concrete content into their constitution as possible, as a hedge against what they anticipate will be the degraded notions and self-serving inclinations of their less fortunate successors. On these assumptions, constitutionalizing open-ended principles that their successors will probably only misconstrue and abuse would be a horrible political strategy.
Conversely, imagine a more optimistic set of framers who believe in the likelihood of political, moral, and philosophical progress. Why would such framers want to bind their more enlightened successors to some principle that they themselves only imperfectly understand? Why not just let their blessed descendants choose for themselves what principles to follow?
Probably there are scenarios in which an open-ended authorization could seem sensible. Maybe the framers foresee an ethically and epistemically inegalitarian future in which elites (including judges, and of course law professors) will be more virtuous and enlightened than the present generation, but the people generally — the folks, as Bill O’Reilly would say — will be less enlightened. So the idea would be to constitutionalize an amorphous principle that future elites can use to herd and corral the benighted masses. But this scenario seems far-fetched (as a projection, anyway — perhaps not as a description of contemporary elite sensibilities), and unappealing— not something we would be eager to accommodate.
In sum, although framers could choose to constitutionalize some abstract principle, this seems implausible. The move to abstract principle seems implausible, that is, if we ask about political decisions (as opposed to textual meanings).
To sum up. The central claim is that political authority manifests itself primarily in the mindful making of political decisions, and only derivatively and instrumentally in the enactment of words. That claim is contestable, of course. But if it is correct, then our interpretations should look to the words (and the context, and other relevant indicia) in an effort to recover or reconstruct the decisions. Conversely, if we lose sight of the centrality of decisions and instead understand ourselves more loosely to be looking simply for the meanings of the words, we facilitate the kinds of unmoored abstractions that have so often diverted originalism from its purpose of respecting the constitutional assignments of authority and of promoting rational political decision-making.