Originalism must construct rules of precedent that mediate between the value of following the original meaning and the value of constitutional settlement.
Over at Balkinization, Jack Balkin has a response to the Liberty Forum on Steve Smith’s essay on the Original Decision. In my essay, I had some critical things to say about Jack’s view and Jack pushes back against them. Unfortunately, I believe Jack appears to misunderstand the originalist theory that John McGinnis and I present in our book, Originalism and the Good Constitution.
I had criticized Jack’s version on the ground that it used normative arguments to adopt a thin theory of the Constitution’s original meaning. As Jack wrote:
Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute “original meaning” for purposes of constitutional interpretation. There is no natural and value-free way to make this selection. It cannot be settled by the meaning of “meaning,” much less the meaning of “original.” It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have.
Jack claims that McGinnis and I also adopt our original methods approach based on normative considerations. Jack writes:
That is, their account of original methods originalism is not driven by the fact that this is simply what an accurate interpretation of a text is. Rather this choice is driven by their deeper theory of why originalism is justified in the first place. They argue that combing adherence to constitutional rules created by a supermajority with original interpretive methods achieves the best consequences for a polity, and that this — not democracy or the rule of law — is the basis on which originalism can be justified. But both of these are value choices: I want to make sure that the Constitution maintains democratic legitimacy over time, they want to ensure that the Constitution produces good consequences.
Unfortunately, this is not correct. We make two arguments in favor of original methods originalism. The first is interpretive (or positive in contrast to normative). We argue that determining the original meaning of the text requires that one make reference to the original methods. See page 117-126 of our book.
It is true that we also argue for the original methods based on the normative argument that Balkin mentions, but that is an independent argument. It is a key aspect of our argument that the most accurate meaning of the Constitution requires following the original methods. That this interpretive argument coincides with the normative argument is important, but it does not mean that we believe that the original meaning is determined by the normative argument. The more accurate way to put it is that we believe there are normative arguments for following an original meaning defined by non-normative interpretive ideas.