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Originalism and Liberty: Ilya Somin Replies

I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original intent was upended by the arrival of an addition to the family. However, the issues raised in this symposium remain current and should continue to be so for some time to come.

Despite our considerable differences, there are some important areas of agreement between the three commentators and myself. All three seem to accept the point that constitutional interpretation cannot be a value-neutral exercise. The commentators also do not challenge many of the specific points I made in support of the conclusion that originalism provides stronger protection for individual liberty than do its realistically feasible competitors. This response focuses primarily on those areas where the commentators and I differ. But it is worth keeping the areas of agreement in mind, as well.

My most extensive disagreements are with Ed Whelan, who argues that originalism and other theories of constitutional interpretation should not be judged by the consequences of adhering to them. He claims that originalism can instead be justified simply on the ground that adopting any other methodology would lead us to “lie about, or to misstate, what the Constitution means,” which he believes to be presumptively wrong.

But the premise on which Whelan’s claim rests is itself wrong. Nonoriginalist interpretations of the Constitution—or any other document—are not necessarily either lies or misstatements. A nonoriginalist jurist could be lying if he pretends to follow the original meaning, but actually does not. But most living-constitution advocates are quite open about their willingness to allow other considerations to supplement or override the original meaning in many situations. Nor is their position necessarily a “misstatement,” unless accuracy in interpretation is defined circularly as sticking to the original meaning of the document, as opposed to searching for some other form of meaning. There are many situations where a nonoriginalist interpretation of a text can be both useful and accurate, given the purpose which it is intended to serve.

For example, it isn’t necessarily either deceptive or inaccurate to put on a performance of Hamlet based on a Freudian or Straussian interpretation of the play. These interpretations were not intended by Shakespeare, nor do they accurately represent how the play was perceived by audiences in Elizabethan England. But they nonetheless might have value for audiences today. Whether an originalist interpretation of Shakespeare is better than a nonoriginalist one will vary based on the purpose for which interpretation is undertaken. The same is likely to be true of the Constitution.

Quoting Larry Solum, Whelan suggests that citizens and officials should presumptively follow the law in a “reasonably just society” and should therefore stick to the original meaning. This, of course, assumes that “the law” is in fact the original meaning, which is the very point in dispute between originalists and living constitutionalists. Even more importantly, many critics of originalism deny the  key premise that following the original meaning will result in a “reasonably just society.” In their view, following the original meaning of a hard-to-amend Constitution mostly written by “dead white males” centuries ago is likely to lead to severe injustices. In order to refute such claims, originalists must focus on the consequences of following the original meaning, and explain why those consequences are likely to be better and more just than those of other realistically feasible alternatives—or at least not be manifestly harmful or unjust. Originalists cannot preemptively rule out  living constitutionalism by claiming that  it is necessarily based on lies or misstatements.

Ed Whelan fears that “libertarian promotion of an activist role for the judiciary will have the predictable (though unintended) effect of providing rhetorical cover for an aggressive Progressive judicial activism.” Actual advocates of “Progressive judicial activism” rarely cite libertarians for “rhetorical cover.” But they often emphasize the real and imagined injustices likely to result from following the original meaning. The best rhetorical cover they could have is the sense that originalists are indifferent to  real-world consequences.

Whelan also fears that the sort of strong judicial review that can effectively promote liberty might undermine “self-government” through the democratic process. This concern is also shared by Peter Lawler. But at least under modern conditions, their fears are misplaced.

In a world where government at all levels spends nearly 40 percent of gross domestic product and regulates almost every type of human activity, there would be no shortage of scope for democratic “self-government” even if judicial review somehow managed to reduce that scope by half. In that unlikely scenario, democratically elected officials would still control far more aspects of our lives than they did during the era of the Founding or throughout most of American history thereafter (with the important exceptions of the lives of slaves, and African Americans subject to Jim Crow-era state-enforced segregation). The real threat to democracy in America is not the judiciary but a government so large and complex that most voters cannot keep track of more than a small fraction of its activities.[1] As James Madison warned in Federalist 62,  “it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

Stronger judicial review is not the only or even the most important part of the solution to the problem of overgrown government. But it can help.

Ultimately, an emphasis on self-government and deliberation through the democratic process is a poor fit for a defender of originalism. Far from being champions of democracy, most of the Founders were deeply suspicious of it. They worried that, thanks to a combination of interest-group machinations and voter ignorance and irrationality, democracy would pose a severe threat to liberty private property, and other natural rights.[2]

To combat these dangers, they built into the Constitution numerous tight constraints on the democratic process, including strict limits on the scope of federal power, an unwieldy system of separation of powers, a significantly unrepresentative Senate and—at least after the enactment of the Bill of Rights—a variety of individual rights enforceable by strong judicial review. As explained in my initial essay in this symposium, the framers of the Fourteenth Amendment sought to impose on state governments some of the same constraints on democracy that the original Constitution and the Bill of Rights only applied to the federal government.

Left-of-center critics of originalism and the U.S. Constitution have long emphasized that enforcement of its original meaning inhibits majoritarian democracy far more than it empowers it.[3] Those who want a political system with a strong commitment to self-government  through the democratic process would do well to advocate some version of living constitutionalism.

But there is another version of self-government that originalism can effectively advance: the ability of free individuals to order their own lives as they see fit—both separately and by participating in voluntary cooperation in the family, the market, and civil society. This more genuine form of self-government can best be protected by enforcing strict constitutional limits on the ability to control the lives of others through the political process. And deliberation in the market and civil society is likely to be better-informed and more logical in its evaluation of evidence than deliberation in the political process, where voters have strong incentives to be rationally ignorant about the issues at stake in elections.[4]

Peter Lawler describes my position as holding that “the judiciary [should] maximize its power because it is typically more enlightened than our stupid and credulous legislators.” This is incorrect. I do not claim that judges are necessarily more enlightened than legislators, but that the forceful exercise of judicial review can serve as a check on  the exercise of power by the other branches of government, while offering few opportunities for initiating new forms of government intervention. The point is not that judges are smarter than legislators (most are not), but that they have a different set of incentives and constraints—ones better-suited to limiting state-imposed infringements on liberty than expanding them.

In some respects, there may be more agreement between my critics and myself on judicial review than immediately meets the eye. Whelan disclaims any support for broad Thayerian deference to the legislature, and even complains that my critique of such deference is aimed at a straw man, because there are “few, if any, actual Thayerians.”

In criticizing wide-ranging deference, I had in mind such prominent conservative jurists as Professor Lino Graglia and Judge J. Harvie Wilkinson.[5] Perhaps even more importantly, there is a long history of conservative rhetorical denunciation of  “activist” judges who fail to give extensive deference to the legislature.[6] That rhetoric coexists uneasily with a number of other commitments held by many on the Right, and some conservatives have always intended it in a more nuanced way than is often perceived. Others, such as the late Judge Robert Bork, advocated both aggressive enforcement of the original meaning and broad judicial deference to the democratic process without considering the potential conflict between the two.[7]

The rhetorical commitment to deference is an important phenomenon, and has led many to assume that conservative originalists inevitably support  very broad judicial indulgence of the other branches of government.

Finally, Whelan claims that I have misinterpreted the work of John McGinnis on judicial deference. Fair-minded readers can decide for themselves which of us has interpreted McGinnis more accurately. For present purposes, the key bottom line is that McGinnis effectively shows that the original understanding of judicial review allowed judges to strike down laws even in cases where there was a serious and plausible case for their constitutionality, and that the occasion for judicial deference in doubtful cases would rarely arise, given the extensive interpretive resources available to judges (especially under modern conditions).[8] As understood at the time of the Founding, McGinnis argues that “the duty of clarity” does not require courts to “accept any possible textual reading that upholds the statute if through the legal science of the day they can find a clearly better reading that condemns it.”[9] The validity of the “clearly better” reading need not be certain, or even close to it.

In some respects, I might go farther than McGinnis—and certainly Whelan—in rejecting deference. For example, Whelan implies that he might support deference in a case where it is 51 percent likely that the statute in question is unconstitutional under the original meaning. To my mind, there is rarely, if ever, a good reason to uphold a statute that is more likely to be unconstitutional than not. I would rather have a 51 percent chance  of being right than a 49 percent chance. But even the  consistent application of originalism combined with moderate deference would result in far tighter limits on government power, and far greater scope for liberty than we currently have.

I fear that Peter Lawler’s response misinterprets my position on several important points. He is wrong to claim that in my estimation “there is in the end nothing higher than one’s own will, one’s own autonomy.” To the contrary, as both Ed Whelan and Hadley Arkes recognized, I emphasized in my original essay that “negative liberty doesn’t always trump all other values” and that “a complete theory of constitutional interpretation must also consider other goals such as the provision of public goods and increasing human welfare.” Similarly, it is strange that he  assumes that the “negative liberty” I describe “means deferring to no personal preferences but one’s own.” At the very least, it also requires us to respect the negative liberty of others, even in cases where such respect conflicts with strongly held “personal preferences.” There are also several less significant distortions in his essay. [10]

Nor do I claim, as Lawler suggests, that the case for negative liberty comes down to “preferences” alone (either mine, or those of others). In reality, I believe that case depends partly on natural rights reasoning of the kind  discussed  by Hadley Arkes, and partly on the beneficial utilitarian consequences of protecting liberty. In this symposium, however, my task was not to present a normative case for liberty, but rather to consider what approach to constitutional interpretation is most likely to promote liberty effectively.

The answer to that question may have little importance for those who believe liberty is irrelevant or even harmful. But libertarians are far from the only ones who believe that negative liberty often has great value, even if doesn’t always trump all other considerations.

I have relatively few disagreements with Hadley Arkes’s contribution to this exchange. We agree that the original meaning of many parts of the Constitution is based in large part on natural law theories of rights, and that many of them have an important libertarian component (though we also agree that libertarian freedom is far from the only value advanced by the Constitution). We also agree that too many conservatives today advocate excessive judicial deference to the other branches of government.

I am not sure I would go as far as Arkes and scholars such as Randy Barnett in arguing that the original meaning of the Constitution requires a general “presumption of liberty,” including with respect to rights that are not specifically enumerated in the text.[11] However, even rigorous enforcement of the original meaning of the enumerated rights and structural limitations on governmental power would lead to far greater protection for liberty than exists today.

We may also disagree somewhat on the methods that judges should use in relying on natural law reasoning to interpret the original meaning, and the relative weight to be given to such reasoning compared to other considerations.

The debate over originalism, liberty, and their respective roles in constitutional interpretation will not be settled by this symposium. But I hope that my essay and the insightful responses by Arkes, Lawler, and Whelan have at least made a contribution to the discussion of these important issues.

[1] For a discussion of this problem, see Ilya Somin, Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, 2013).

[2] For a detailed analysis of these fears, see for example Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and its Legacy, (University of Chicago Press, 1990).

[3] See, for example, Sanford Levinson, Our Undemocratic Constitution (Oxford University Press, 2008); Robert A. Dahl, How Democratic is the American Constitution? (Yale University Press, revised edition, 2002).

[4] See Somin, Democracy and Political Ignorance, chapters 3 through 5.

[5] See, for example, J. Harvie Wilkinson, Cosmic Constitutional Theory: Why Americans are Losing their Inalienable Right to Self-Government (Oxford University Press, 2012).

[6] I recognize that the term “activism” has multiple meanings and is sometimes used to denote judges who deviate from the text of the Constitution rather than those who strike down laws, regardless of the reason. But the  latter meaning is often prevalent in political rhetoric

[7] I discuss these issues in more detail in Ilya Somin, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” 80 University of Chicago Law Review Dialogue (2013), 243; and Ilya Somin, “Left, Right, and Judicial Review,” Volokh Conspiracy,  July 12, 2012, available at http://volokh.com/2012/07/12/left-right-and-judicial-review/

[8] As he puts it, courts in the early republic were “generally confident in their ability to come to clear conclusions, because legal rules point to considerations that systematically reduce uncertainty.” John McGinnis, “The Duty of Clarity,” Northwestern University Public Law Research Paper No. 15-14, March 13, 2015, p. 32, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2578318, pg. 32..

[9] Ibid., p. 5.

[10] These include, for example, the assumption that libertarian constitutional theorists hold up Justice Anthony Kennedy as some sort of ideal. In reality, Kennedy cast crucial swing votes the wrong way in two of the most important un-libertarian decisions of the last decade: Kelo v. City of New London (2005) and Gonzales v. Raich (2005).

[11] I think that a presumption of liberty in many spheres, while not required as a matter of interpretation of the constitutional text, may sometimes be justified as a rule of construction, particularly under modern circumstances where the powers of government have grown far beyond those originally envisioned. However, I have not fully worked out my views on this issue, and the above is just a tentative suggestion whose elaboration must await another day. Cf. Randy E.  Barnett, “Interpretation and Construction,” 34 Harvard Journal of Law and Public Policy (2011), 65.

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