Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
In the past I have written a couple of posts about the argument for originalism based on the idea that the original meaning of the Constitution is the law. In this and my next post, I will discuss this issue in the context of H.L.A. Hart’s theory of the law.
The simple version of the argument that the original meaning of the Constitution is the law is problematic. In the United States, people are imprisoned every day based on laws that violate the original meaning of the Constitution. Thus, if the original meaning of the Constitution is the law, one might ask in what sense it is the law, since that “law” is not being enforced.
Perhaps the leading way to understand what the law is, in the Anglo American legal world at least, is to consider H.L.A. Hart’s The Concept of Law. Hart believes that the rule of recognition sets forth the criteria of legal validity for creating, changing, and adjudicating law. Thus, if originalism is the law, then that would be the case in virtue of it being required by the rule of recognition.
Where then do we look for the rule of recognition? Hart believes that the rule of recognition represents a convention among officials to regard its criteria as standards that govern their behavior as officials. Thus, the rule of recognition would reflect the views and behavior of judges and other officials as to what the law is.
If originalism were the law, then according to Hart’s theory, it would be required by the rule of recognition. Judges and other officials would believe that only the original meaning was the law.
The problem, of course, is that most judges (and other officials) do not regard only the original meaning as the law. In fact, the dominant view, at least until recently and probably still the majority view today, is that nonoriginalism is a perfectly acceptable way of adjudicating cases. Based on the prevalence of nonoriginalism, one might even argue that originalism is illegal.
In this first post, I will explore the idea of the rule of recognition, with particular reference to whether it forbids originalism. After concluding that the rule of recognition allows originalism, in my next post, I will come back and discuss the possibility that the rule of recognition requires originalism and therefore that originalism might be the law.
What is the Rule of Recognition Today? Does it Forbid Originalism?
The content of the rule of recognition in the United States today is a matter of significant controversy. One possible view of the rule of recognition is that it renders the law to be whatever the Supreme Court says it is. There is an element of truth in this in that the Supreme Court seems to have great discretion to decide cases as it likes and still have its decisions enforced. But simply because the decisions are enforced does not mean that they are in accord with the rule of recognition. A decision based on questionable criteria might be enforced, but it might be subject to serious criticism from all sides of the political spectrum for being based on improper criteria. That decision would not be in accord with the rule of recognition.
Another view about the rule of recognition is that there are a plurality of modalities that judges regularly employ to interpret the Constitution. For example, Phillip Bobbit argues that there are six modalities: historical, textual, structural, doctrinal, ethical, and prudential. Based on this regularity of judicial behavior, one might argue that judges must employ all of these modalities, because that is what the rule of recognition requires. Since originalists arguably employ only one or two of them, their actions might be thought to violate the rule of recognition.
But this argument seems problematic. It may be that judges as a whole employ all six of these modalities, but that does not mean that each judge is required to employ all six of these modalities. The question is whether judges who did not employ all six would have been criticized by other judges or officials for failing to follow the law. But that is not the case. Justice Scalia and Thomas, for example, are not criticized for being lawless for their originalism (at least by a large number of people). Thus, it does not seem that the rule of recognition requires all six modalities.
If some judges are nonoriginalists and some are originalists, then how are we to understand the rule of recognition here? If the rule of recognition is supposed to determine how courts are to adjudicate cases, but it does not decide between originalism and nonoriginalism, then how can it fulfill its function of determining what is legal? Sometimes this issue is discussed as the matter of theoretical disagreement – the fact that judges disagree about the criteria of legal validity – in this instance, the proper way to interpret the Constitution.
It is not clear how one resolves such a disagreement with a rule of recognition theory. One possibility is to say that the rule of recognition only extends to matters about which judges agree. If they do not agree, then judges have discretion to decide which interpretive approach to follow. This argument would not mean that judges have unlimited discretion. If all judges agreed that a certain interpretive approach was improper – let’s say deciding cases based on astrology to take an extreme example – then judges could not lawfully follow that approach. But since originalism is not considered legally improper by the great majority of judges, it would appear that originalism is one acceptable approach to interpretation that judges are allowed to follow.
It is interesting to think about changes in the rule of recognition over time. Although originalism today appears to be an accepted interpretive methodology, in 1970 it might not have been. If Justices Thomas or Scalia were put on the Court then and attempted to decide cases in a strongly originalist way, it is possible that they would have subject to strong enough criticism from judges and officials to conclude that they were violating the rule of recognition. By the same token, if a justice admitted in the 19th Century that he was deciding a case based on nonoriginalism, that action would probably have been regarded as illegal.
But today originalism is not regarded as illegal. Justice Scalia and Thomas write decisions, and while nonoriginalists may roll their eyes, they don’t generally claim the decisions are illegal.
Thus, it seems that originalism is not illegal. Next time, I want to discuss whether there are any arguments for the view that originalism is the only legal position and therefore that nonoriginalism is illegal.