Expect to see these questions and lines of attack at Brett Kavanaugh's confirmation hearing, because senators often use them, regardless of the nominee.
Originalism and the Positive Turn
For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may better understand a new development in the new originalism: the positive turn, or thinking of originalism as our law.
The new originalism has long faced two different kinds of critics: the external and the internal. The external critics are not originalists at all. Some of them simply reject all forms of originalism, but many instead argue that the new originalism is inferior to the old one. The old originalism, they say, at least had the courage of its convictions. “At least we were arguing about something!” these critics might cry. “Now, I don’t know what the debate is about anymore!”
Originalists themselves often mistrust these external critics. After all, those who are unsympathetic to a philosophy often have bad judgment about what are the best parts of that philosophy. Other external critics may not have kept with originalism’s development.
New originalism also has internal critics. The internal critic continues to adhere to, or at least sympathize with, the “old” originalism. This critic’s worry is that an originalism that yearns to be too flexible or too popular may lose whatever it was that made originalism good in the first place.
In recent years, Steven Smith has become the most important internal critic, as his Liberty Law Forum essay continues to show. Smith argues that it is time for originalists to do away with “original meaning.” Meaning is too manipulable, he says, too easily detached from the actual goals of the original enactors. We should instead look for what he calls the “original decision.”
I disagree, for reasons that are simultaneously narrow and deep. On its own terms, I think Smith’s proposal should largely collapse back into original meaning. But Smith’s proposal also reveals a foundational disagreement about originalism’s goals, and I think Smith is on the wrong side of it.
Let’s start by taking Smith’s proposal on its own terms—that the “original decision” is “a better criterion” than the “original meaning.” His idea is that we should look to what the Framers wanted (or would have wanted) rather than what is implied by the words they chose. Too much loyalty to the form of the words gets us too far from the authority and rationality of the Framers.
But Smith’s proposed replacement may not really take us anywhere. Decisional originalism, faithfully applied, should lead us in a circle back to original meaning. The original decision includes the decision to use a certain set of words. The original decision, moreover, includes the decision to express oneself at one level of generality rather than another. When we use the original meaning of the constitutional text “to try to understand and reconstruct the decisions,” we should not slight these conceptual and writerly kinds of decisions. They are decisions about what legal propositions to freeze in amber and what propositions to make contingent on future events.
Consider Smith’s example of same-sex marriage. The originalists who argue for a right to same-sex marriage argue that the Fourteenth Amendment’s meaning was an anti-discrimination principle that was broader than race and might include sexual orientation. Smith asserts that this result is obviously contrary to the “enactors’ decision” reflected by the Fourteenth Amendment. But how does he know? The thrust of the original meaning argument is that the authors of the Fourteenth Amendment decided to empower Congress or the courts to recognize and invalidate new forms of discrimination, potentially including this one. That argument needs to be met on its own terms—to say that this is not what the authors decided is to say that this is not the Amendment’s original meaning.
(I suppose one could think that the Framers used a form of nominalism, where words were simply tokens for concrete, expected applications. But that, too, is a claim about original meaning.)
To be sure, the method of original meaning can be manipulated by those who act in bad faith. And it will not always produce the same answer even to those who act in good faith. There are lots of questions internal to originalism about contested meanings, ranges of meaning, and which institutions should judge meaning and how. (That’s why there’s so much scholarship on originalist theory.) But if Smith’s “decisional originalism” were to be pursued systematically, the same questions would recur: What was the decision? At what level of abstraction? How do we know? Who is empowered to answer these questions now?
Reading Smith’s essay, one almost wonders if the real goal of his proposal is to keep the idea of original meaning but declare a mulligan on its implementation. Maybe Smith just wants to wipe away all of the work that has been done on original meaning thus far and start asking the same questions under a new name. (At least that’s what I take him to mean when he says that “maybe, given a different history of development,” original meaning “could have been” the proper way to interpret the Constitution.)
But the same people who have caused original meaning to “lose touch” will presumably ask the same questions about decisional originalism if it is pursued. If so, we will be having the same debates again, and the change in terminology will have accomplished little. Far better just to have those debates now, within the framework of original meaning (as Smith has indeed done in some of his other work). The new paradigm will not get originalism “back on track” so much as push it back a few stops, only to run the same route.
If the substance of Smith’s proposal is so close to original meaning, it might seem that we have no cause to disagree. But I suspect that something deeper is going on here—something that might explain why Smith views the current project of original meaning as unsalvageable while I do not.
That deeper issue is nothing less than the fundamental justification for originalism. Smith’s answers are deeply connected to the wisdom and authority of the past. For him, the goals of originalism are adhering to the authority of the Framers and accessing their wisdom and rationality. But that’s not the only way to see originalism’s goals.
Here’s an alternative, part of what I’ve called “the positive turn” in originalist thought. Originalism is important because it’s part—maybe more than just part—of our current legal practice. It’s part of our practice in two related ways.
First, there’s the Constitution itself. For all that our constitutional doctrine and legal practices have changed over time, we’ve kept the same basic, written framework. That framework is the text of the Constitution, including various amendments enacted under the text’s procedures for amendments. The document is central to modern practice. Public officials take an oath to support “this Constitution,” and it remains the ultimate source of legal authority. And the document has a date and signatures on it that mark its origin and authorship. The original Constitution (as amended) is our law today.
Contrast this with Smith’s new framework for originalism. The reason we care, and should continue to care, about the original “meaning” of the Constitution is because the Constitution is the law now. Original “decisions” are legally enduring only to the extent that they were encoded in the Constitution’s text. So Smith’s focus on the authority of the Framers gets things backward. He thinks we care about the Constitution because of the authority of those who framed it. On the contrary, I think we care about the Framers only because they happened to write the Constitution that is still our law.
Second, it is not just the text itself that is the law. Our specific legal practices give primary weight to the original meaning of the text and the original legal rules for interpreting it. The Supreme Court sometimes rejects other normative arguments in favor of the original meaning. But it has never openly rejected original meaning. The biggest apparent challenge to originalism might seem to be cases that rely on non-originalist precedents. But the doctrine of precedent is itself one of the original legal rules for constitutional interpretation. A doctrine of precedent is a testament to, not a contradiction of, the legal status of originalism.
Again, contrast this with Smith’s new framework for originalism. Part of the reason the Court does not openly reject originalism is that it often finds that the original meaning is ambiguous or vague or flexible. This makes it easier for our modern practices and the original meaning to coexist without conflict. Smith is right to worry that this flexibility is manipulable, but as I’ve said above, I think his worry goes too far. If the true original meaning is not really so flexible, originalists should prove it. And if it is flexible, then originalists should accept that. That’s our legal process. In any event, if the decisional originalism approach Smith proposes really is much stricter than the original meaning, it will be much more inconsistent with our law.
The Justices also say that they apply the potentially general original meaning. At her confirmation hearing, Justice Kagan said that “Sometimes [the Framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.” And in a recent interview Justice Alito said something very similar: “I start out with originalism. . . . I do think the Constitution means something and that that meaning does not change. Some of its provisions are broadly worded.” In unforeseen circumstances, he went on, “I think all you have is the principle and you have to use your judgment to apply it. I think I would consider myself a practical originalist.” Smith’s skepticism about broad principles in the Constitution places him at odds with these views of the law.
This emphasis on originalism’s legal status—which I and others have proposed—is the positive turn. What does it accomplish? The positive turn answers the dead-hand argument famously leveled against originalism: The earth belongs to the living, so why should constitutional law be controlled by the decisions of the dead? The Constitution continues to control precisely because we the living continue to treat it as law and use the legal institutions it makes, and we do so in official continuity with the document’s past. The same thing is true of the other parts of our law—old statutes, old precedents, and old deeds all continue to have legal force today unless other valid legal rules upset them. So the decisions of the dead still govern, but only because we the living, for reasons of our own, receive them as law.
Smith’s vision, by contrast, seems to double down on the dead-hand problem. He is not satisfied with adhering to the original meaning of the actual legal documents that have carried forward from the Founding. He wants to adhere also to legal documents they would have written, if they’d better imagined the future. That account of authority cannot be justified by its current legal status. So Smith is advocating more than the continued control of the dead hand; he would reanimate the hand to help it squeeze more into its grip.
To be sure, there is plenty that the positive turn fails to accomplish. For instance, there is no guarantee that it will demonstrate that Roe v. Wade is wrong and illegitimate. And if there is sufficient revolution in our practice—if we were to start burning the text of the Constitution in the streets, or impeaching originalist judging as a high crime—in that event, the positivists will eventually have to sign on with the new regime. The exhilarating thing about rule by the living is that the living can change their minds. But until we do, the Constitution’s original meaning is the law we have.