The lack of balance in the legal academy is a serious problem, and it's getting worse.
Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of judicial restraint unless it has a method of eliciting it from nonoriginalists.”
What is needed, according to Smith, is a strategic originalism that provides nonoriginalists with an incentive not to engage in judicial activism.
Smith’s essay is interesting and insightful. I have long believed that the problem of persuading nonoriginalists to follow the original meaning is an extremely serious and difficult one. And I have wondered about the type of solution he proposes: strategic behavior on the part of originalists.
The strategy I have envisioned, however, differs from Smith’s. The actions I have considered are more radical than those he advances and are designed to persuade nonoriginalist judges to follow originalism. By contrast, Smith’s proposal is more moderate and is focused more on responding to nonoriginalist decisions than on preventing them. In the end, while I have some sympathy for what he proposes, I am not sure it needs to be justified based on the strategic considerations he relies upon and I am skeptical that his approach would make much of a difference.
I will take up Smith’s proposal in the second part of this response, but let me first describe the strategy that I have imagined for inducing nonoriginalists to follow the original meaning.
Originalism As a Protection of the Right and the Left
Perhaps the biggest obstacle to securing support for originalism derives from the differing views of this interpretive approach from the Right and the Left. On the Right, originalism is seen as a constraint on judges’ imposing their values on the nation through judicial decisions. Originalism thus protects people from having imposed on them values that have not attained sufficient support to be written into the Constitution.
Those on the Left, in contrast, see originalism as a method for enforcing an old Constitution that mainly furthers Rightwing values. Consequently, the Left does not see originalism as a protection against values imposed by those who disagree with them.
This Leftwing view of originalism is in part the result of the principles advocated by Rightwing justices. Justices on the Right state that they will enforce the Constitution’s original meaning, not their own conservative or libertarian values. As a result, people on the Left do not fear Rightwing justices claiming to impose their own values. They fear those justices’ following the original meaning (or in some cases imposing a Rightwing version of the original meaning).
But imagine if Rightwing justices sought to impose their own values on the Constitution—if, for example, conservative justices sought to prohibit abortion nationwide through constitutional interpretation rather than simply arguing that the Constitution permitted the states to decide the question. In this situation, the Left would have to worry about much more than the original meaning. They would have to worry about judicial imposition of the Rightwing political agenda.
Under those circumstances, the Left might actually view the Constitution’s original meaning as protection, just as the Right does now. Both sides of the political spectrum would view the Constitution as protecting against the other side’s imposing its values. The Constitution’s original meaning would be genuine protection for both Left and Right.
This Leftwing response to the courts is similar to one historical account of the Progressive/New Deal reply to the Lochner Court. According to this view, the Lochner Court had imposed its own conservative economic values and the New Deal jurisprudence was an attempt to reestablish the Constitution’s original meaning.
As a present-day means of promoting originalism, however, the problem for this strategy is that the Rightwing justices neither explicitly nor implicitly threaten to make such an attempt. Thus, the worst that the Left needs to fear is originalism.
An effective strategy from the Right might then seem to require that the Rightwing justices threaten to engage in judicial activism unless the Leftwing justices choose to follow the original meaning. This would give the latter an incentive to be originalists, increasing the costs to them of their own nonoriginalist decisions. What’s more, Rightwing justices might like this arrangement, since it would allow them to pursue their own values.
Admittedly, there are serious problems with this approach. First, it is not clear how the originalists should pursue this strategy. The Rightwing justices cannot simply say, “Because you Leftwing justices are deciding this case based on nonoriginalism, we will decide some other unspecified case in accordance with our values.” Carrying out the strategy requires that there be a specific response that is publicly known so that the Leftwing justices can determine the consequences of their actions and so that the public can assess whether the Rightwing justices are actually carrying out their threat rather than simply pursuing their own values.
One possible way for the Rightwing justices to carry out their threat is by announcing in their dissent to the nonoriginalist decision that they will henceforth interpret this constitutional provision in a nonoriginalist way. If the liberal justices adopt the originalist interpretation of this provision in the future, however, then the Rightwing justice will conform to the original meaning as well.
Even if one accepts this possible way of implementing the originalist strategy, there is a second problem. It seems unprincipled for originalists not to follow the original meaning simply because nonoriginalists do not follow it. One of the most powerful advantages that originalists have is that they appear to be principled—they are seeking to consistently follow an intuitively attractive theory. If they behaved in an unprincipled way and pursued their own values, they would lose much of their appeal.
It is true that the originalists could argue that they are simply responding to the nonoriginalists’ behavior, and doing so in order to promote originalism. But I do not think this argument would be terribly persuasive. Instead of pursuing originalism, the originalists would now be pursuing nonoriginalism part of the time, which is a problematic way of promoting originalism. And it is by no means clear that the Constitution’s original meaning permits them to engage in this strategy.
Thus, while this strategy would provide nonoriginalists with additional reasons to follow the original meaning, it would do so at the cost of the most powerful method that originalists have of promoting originalism. So in the end the benefits of this strategy as a means of promoting originalism would not be worth the costs.
Let me turn now to Smith’s very different proposal. It is more moderate than mine because it does not invite originalists to pursue their own values. It is more limited because it does not provide nonoriginalists with much of an incentive to be originalists. Instead, Smith’s proposal would give originalists an additional option when facing a nonoriginalist precedent—an option that would allow them to promote results that are not originalist, but are closer to the original meaning than they might otherwise have achieved.
Smith begins with a general discussion about how various methods for promoting originalism, such as moral suasion or judicial appointments, have not worked. This leads him to suggest a strategic originalism—or what he calls reactivism—that he claims would provide nonoriginalists with a greater incentive to avoid nonoriginalism.
He imagines a situation where nonoriginalists have departed from the original meaning. In Case One, a six-member majority chooses to depart from the original meaning to find a new constitutional right. In Case Two, the six member majority splits on how to apply the new nonoriginalist precedent, with three members favoring a narrow interpretation of the precedent and three favoring a broad interpretation. Thus, the three originalists have the power to choose between these interpretations and provide their choice with the force of a majority decision.
Smith builds into the situation that the broad interpretation is the better reading of the opinion in Case One.
His argument is that, while the narrow interpretation would be preferable for originalism, because it is closer to the original meaning, current practices require the originalists to apply the broad interpretation. The reason is that current practices require the justices to vote based on their sincere views as to the law, not based on strategic considerations of what the other justices on the court might support. The originalists would not think that the narrow interpretation was the best interpretation, believing either the original meaning was (if they ignored the precedent) or the broad interpretation was (if they followed the precedent). But Smith argues that despite current practices, the benefits of strategic decisionmaking justify the originalists’ supporting the narrow interpretation.
Smith then imagines a change in judicial personnel, with two new justices who believe Case One was wrongly decided. While the originalists now have a majority who think Case One was wrongly decided, Smith says they would be disinclined to act on their conclusion because the justices are generally loath to overturn precedents. In this situation, Smith suggests that originalism would be better promoted by favoring the narrow interpretation of Case One, but that the current practice of prohibiting strategic voting favors the broad interpretation. Nonetheless, Smith again argues for such strategic voting based on his reactivist theory.
My first instinct is to question his hypothetical. Let’s consider Case Three, where the originalists have a majority. In this situation, the analysis turns on whether the precedent rules allow Case One to be overruled. Let’s assume initially that overturning the precedent is problematic, because the precedent rules forbid such a radical change. In that situation, are the originalists required (by the prohibition on strategic decisionmaking) to follow the broad interpretation, because it is the better interpretation of the earlier precedent?
I am skeptical. The decision in Case One is mistaken, since it was inconsistent with the original meaning. If precedent rules allowed it to be overturned, then it should be. But since that is not permitted, there is nothing problematic with overturning it to the extent that the precedent rules do allow—that is, by adopting the narrow interpretation of Case One, which is closer to the original meaning. This is not strategic voting. It is simply correcting the law to the full extent that the precedent rules allow.
Now assume that the precedent rules allow Case One to be overturned. In this situation, the majority should overturn the precedent. It is not for the majority justices to decide to keep a bad precedent because they do not like overturning decisions. They are obligated to follow the law. (If the originalists believe that cases like Case One should not be overturned, then they should change the precedent rules generally, in which case the analysis above would apply.)
Moreover, this overturning promotes originalism. One way to discipline nonoriginalists from departing from the original meaning is not to follow their nonoriginalist precedents. This would strongly provide such nonoriginalists with less of an incentive to depart from the original meaning and it would reduce the damage they cause by overturning those nonoriginalist precedents at the first opportunity. And it is a principled approach.
Now consider Case Two. It is like Case Three, except that the originalists do not have the votes to overturn the precedent. They either could join the narrow interpretation of the precedent, giving it a court majority, or write an opinion arguing that Case One should be overturned, thereby splintering the court into three opinions.
The originalists’ decision is not important for the lower courts, which presumably would be bound under the Marks rule to follow the narrow interpretation, even if the originalists choose to write a separate opinion advocating that Case One be overturned. But Smith’s idea seems to be that if the originalists joined the narrow interpretation of Case One, then that would be a binding precedent on the Supreme Court in the future to follow that interpretation. If the originalists do not join that narrow interpretation, then the split decision will mean that a future court will decide the matter, without a binding precedent.
My reaction here is largely the same as my reaction to Case Three. If precedent rules do not allow Case One to be overturned, the originalists may legitimately vote for the narrow interpretation. If precedent rules do allow Case One to be overturned, then the originalists should vote to overturn it, even though they do not have the majority necessary to achieve that overturning. They have an obligation to follow the law of the Constitution’s original meaning.
Smith suggests that the originalists’ refusal to join the narrow interpretation opinion will impede the attainment of originalism. But if so, it seems like a very limited impediment. It will only occur when there is a split among the majority justices on the interpretation of the precedent, when precedent rules allow the precedent to be overturned, and when the broad interpretation of the precedent is the better interpretation. This is not likely to occur often.
Moreover, it is not even clear that Smith’s proposal—that the originalist justices join the narrow interpretation rather than voting to overturn the precedent—would further originalism. After all, if the originalist justices endorse the narrow interpretation, it will make it harder to argue for the precedent to be overridden if the originalists in the future end up securing a majority willing to do so.
Ultimately, this situation involving Case Two does not seem all that important. It is unlikely to occur much and it is not clear that the strategy Smith recommends would further originalism. Thus, however one resolves the matter, not all that much turns on the resolution.
In the end, I believe that Smith has raised an important issue for originalism: whether originalists should employ strategic considerations in an effort to persuade nonoriginalist judges to follow the original meaning. But while I found the discussion of that issue interesting, I did not find Smith’s proposal as significant. For it does not actually provide nonoriginalists with an incentive to be originalists. Instead, it merely allows the originalists an additional means of responding to nonoriginalist decisions, which reduces but does not eliminate the benefits to those justices of nonoriginalism.
In contrast to my proposal above, Smith’s does not provide the nonoriginalists with an incentive to abandon nonoriginalism. Moreover, even in terms of the limited objectives of his proposal, its effects would likely be weak. Both approaches, then, seem to land us where we were previously: the main method that originalists have for promoting originalism is the rhetorical defense and judicial practice of this intuitively powerful theory.
 An apparent assumption of Smith’s analysis is that originalism requires or at least is consistent with the prohibition on strategic decisionmaking. This is an interesting question. Given the space constraints of this essay, I will simply assume that Smith is correct.