Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
In the academic world, originalism has become the theory of constitutional interpretation to beat. It has developed a rich and subtle literature both explaining its content and defending its use. As a result of these labors, a large gap has opened between the understanding of originalism within the academy and outside it. That gap was very visible in the confirmation hearing for Michael Brennan for the Seventh Circuit Court of Appeals, because the discussion of originalism was confused and burdened with some elementary mistakes. This is not to criticize the participating Senators, who came of age when modern originalism was not even taught in law schools, or the nominee, who in part was surely just trying to avoid controversy in a very closely divided Senate. But the performance all around suggests the need to make originalism more publicly accessible so that it is not caricatured and undermined.
The discussion began when Senator John Kennedy of Louisiana asked the nominee how to interpret ambiguous provisions in the Constitution. The nominee could have suggested what I think now would be the standard approach among most originalists: that one should follow the best interpretation among the possibilities. Senator Kennedy did seem to acknowledge that there might be ways of resolving ambiguity, such as by looking at the Federalist papers. But he then moved in for what he thought was a devastating question which I paraphrase: With the Federalist Papers you might discover what two Framers thought. What about the other 39? The nominee who had mentioned in passing that originalism was defined by its public meaning responded to the effect that in that case originalists would roll up their sleeves and work harder. The better answer is that Federalist papers were public documents favoring the ratification of the Constitution. Unpublished thoughts and beliefs of the other Framers were not likely to be as relevant to the public meaning of the document, even if we could find evidence of them. Senator Kennedy seemed to be assuming an old and not widely held view of originalism—that it is a search for the intent of the Framers.
Senator Diane Feinstein then followed up, laboring I believe under a similar misimpression. She observed correctly that the country had changed a lot since the Framing. How, for instance, could one apply the Constitution to a smart phone? That would indeed be difficult if one had to find an intent about a smartphone. Feinstein also appeared to be rejecting originalism on the more general view that it cannot address social change. Originalists have offered many answers to that: Mike Rappaport and I have suggested that the Constitution has at least three ways of addressing change: leaving matters to the political branches to change norms by legislation, creating an amendment process to change the Constitution, and writing some provisions of the Constitution as principles that whose application can cover new facts. The nominee did not offer a great response, just suggesting that judges could apply the “values of the Framers” to new situations.
This led Senator Mazie Hirono to wonder whether originalism so defined could cover most any modern Supreme Court decision. And she is right that a focus on high level values rather than text may be compatible with living constitutionalism.
The hearing persuaded me that there needs to be a better way of translating the progress in originalism in the academic world to the public. First, President Trump could send to the Senate an appellate court nominee who has used originalism centrally in his scholarship. That nominee would have no choice but to educate the Senators and though them the public. It is rumored that Professor Nicholas Rosenkranz will be nominated to the Second Circuit. There are many good reasons to nominate such a superb candidate and his capacity for public education is yet another.
Second, Senator Ted Cruz, the Chairman of the Senate Subcommittee on the Constitution, could convene a hearing on originalism. Finally, the Federalist Society could make originalism the theme of its National Convention. In the early years of the Society this seemed to be the topic almost every other year, but it has not been taken up as the central subject in over a decade.