Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
In my last post, I looked at the influence of public choice on originalism, which I discuss in a recent paper. Here I suggest that originalism also faces challenges from public choice that it needs to address. Here are four of them:
How is Originalism Self-sustaining? Public choice originalism shows why one needs to enforce constitutional provisions according to their original meaning to prevent legislative or even popular majorities from undermining the supermajoritarian framework. But why will judges follow originalism, when the supermajoritarian framework of the Constitution makes it very difficult for people to overrule their decisions through a constitutional amendment? Recent work by rational choice political scientists has focused on the general question of how a constitution can be self-enforcing.
One possible answer is that justices will be disciplined by a culture of originalism. As Richard Posner notes (link no longer available), an important part of judicial satisfaction comes from feeling that they have played the game by the rules. If the rules are understood to be originalist, that understanding provides substantial discipline. One observation about this solution is that it makes the success of originalism ultimately dependent on cultural capital–in this case that of the legal culture. That fact is not necessarily surprising. Many other important social institutions, like the market economy itself, have been thought dependent on culture.
How do we know that the Constitution Strikes the Right Balance for Amendments? Recall that Buchanan and Tullock believe that the right voting rule depends on a tradeoff between information and external costs. How can we be sure that the amendment process makes that tradeoff correctly? Historically, the stringency of the amendment process seems reasonable. For the most part, amendments that have come close to passing but have not passed can now be seen as amendments that would have been bad, unimportant, or likely enacted but for the Court’s anticipation of their most important effects though nonoriginalist interpretations of the Constitution. And Article V permitted one amendment— the one that created Prohibition—that was quickly admitted to be a costly failure and repealed. But as the investment saw goes, past performance is no guarantee of future results.
Is the Constitution an Incomplete Contract? Public choice has often analyzed legislation as a kind of contract between various interests groups. If this is a correct analogy for the Constitution, is not such a contract fundamentally incomplete? If so, how are methods based on originalism going to fill in the gaps? Perhaps deference to legislatures can serve to provide a default rule where the Constitution does not provide enough information to displace their judgment.
Does Rational Ignorance Undermine Reliance on the Original Public Meaning? As Ilya Somin has observed, another possible critique from public choice is that citizens are so rationally ignorant of politics that it is difficult to attribute to the public any understanding of many of the Constitution’s terms. If so, then it might be argued that the terms are less definite than that originalism supposes. Is this claim true? At least in the amendment process, stringent supermajority rule so restricts the number of amendments that get serious consideration that citizens are likely to know a lot more about them than ordinary legislation. Does it matter? If citizens agree that the Constitution is a legal document, aren’t they agreeing to the explication of its terms by the legal methods that apply to such a document, even if they do not fully understand every term?