Inviting judges to consider the consequences of their decisions or recent practice as guides to interpretation threatens to bury originalism.
Over at the Legal Theory Blog, Larry Solum links to this new paper by Stephen Siegel. The article argues that the original meaning of Article III, Section 2 of the Constitution, which mandates that “[t]he trial of all crimes, except in cases of impeachment, shall be by jury,” does not permit defendants to waive their jury trial. But in 1930,
in Patton v. United States, a unanimous Supreme Court declared federal bench trials constitutionally permissible. Justice George Sutherland — who strongly believed that the sole goal of constitutional interpretation is to discern and effectuate the Constitution’s original meaning — wrote the Patton opinion. True to form, Sutherland’s Patton opinion maintained that defendants’ jury waivers and federal bench trials for serious offenses were consistent with Article III’s original understanding. However, Justice Sutherland got his history wrong. This Article joins the long list of books and articles questioning the Supreme Court’s use of history as a basis for its decisions. More importantly, by studying how evolving principles of constitutional policy transformed the interpretation of Article III, Section 2’s clear text through a mechanism known as “motivated reasoning,” this Article reveals how evolving principles of constitutional policy have become the basis for constitutional law even in the hands of dedicated originalists.
Thus, Siegel argues that George Sutherland, who he claims to be an originalist, misread the Article III, section 2 because of motivated reasoning — that is, Sutherland desired a particular result and therefore was motivated to reason to that conclusion. For a brief discussion of motivated reasoning, see here and the discussion starting on page 441 of Siegel’s article.
Siegel concludes that if judges are led by motivated reasoning, this undermines originalism and leads to an argument for living constitutionalism:
More importantly, by studying how evolving principles of constitutional policy transformed the interpretation of Article III, Section 2’s clear text through a mechanism known as “motivated reasoning,” this Article reveals how evolving principles of constitutional policy have become the basis for constitutional law even in the hands of dedicated originalists. This Article is a study of the problem that motivated reasoning presents for the practice of originalist jurisprudence, and to that extent, it is an argument for the desirability of a forthright jurisprudence of “living constitutionalism.”
I have only skimmed Siegel’s paper, but this critique of originalism seems weak. Yes, motivated reasoning is certainly a danger for originalism and should be avoided. But that hardly represents a strong critique of originalism for at least two reasons. First, all decisionmakers are subject to motivated reasoning. Therefore, any method of decisionmaking that seeks to constrain judges from deciding cases as they wish will be subject to this danger. For example, if living constitutionalism requires judges to decide cases based on prevailing modern values, rather than the values of the individual judge, then motivated reasoning might lead the judge to believe his values are the prevailing ones. Similarly, if judicial decisionmaking is supposed to decide cases based on the law rather than who the parties are, but if the judge is more sympathetic to certain types of parties (employers over employees, labor unions over corporations, etc), the motivated reasoning might lead to mistaken decisions.
Second, there are methods for checking motivated reasoning. One of the best, I believe, is forcing the judges in the majority to articulate their reasons in an opinion and then allowing the judges in the minority to criticize that reasoning in a dissent. This can expose weak arguments to the public for all to see and works to check conclusions reached by motivated reasoning in the first place. Of course, this is not a perfect check, but no check is.
Finally, I should note that the existence of bad originalism is not an argument against originalism any more than the existence of bad living constitutionalism or bad any other interpretive theory is an argument against those. While Siegel describes Sutherland as an originalist who got his history wrong, this is hardly the first time that Sutherland made this mistake. Sutherland is the author of the completely wrongheaded, nontextualist opinion in Curtis Wright, which is shown to be completely mistaken in this article by Mike Ramsey. Lot’s of people claim to be originalists, but whether they are actually practicing the approach, as opposing to posing or muddling it, is always an important question to ask.