Strategy and Originalism
Over at the Liberty Law Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists. Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution? This is a difficult question. Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem. Relying on this perspective, Smith argues for what he calls a strategic originalism. I respond to Smith’s argument here.
I have also thought about strategic considerations. I discuss one strategy for promoting originalism in my response to Smith:
Perhaps the biggest obstacle to securing support for originalism derives from the differing views of this interpretive approach from the Right and the Left. On the Right, originalism is seen as a constraint on judges’ imposing their values on the nation through judicial decisions. . . [Those] on the Left does not see originalism as a protection against values imposed by those who disagree with them.
This Leftwing view of originalism is in part the result of the principles advocated by Rightwing justices. Justices on the Right state that they will enforce the Constitution’s original meaning, not their own conservative or libertarian values. As a result, people on the Left do not fear Rightwing justices claiming to impose their own values.
But imagine if Rightwing justices sought to impose their own values on the Constitution—if, for example, conservative justices sought to prohibit abortion nationwide through constitutional interpretation rather than simply arguing that the Constitution permitted the states to decide the question. In this situation, the Left . . . would have to worry about judicial imposition of the Rightwing political agenda.
Under those circumstances, the Left might actually view the Constitution’s original meaning as protection, just as the Right does now.
How then might the Right get the Left to view originalism as protection?
An effective strategy from the Right might then seem to require that the Rightwing justices threaten to engage in judicial activism unless the Leftwing justices choose to follow the original meaning.
One possible way for the Rightwing justices to carry out their threat is by announcing in their dissent to the nonoriginalist decision that they will henceforth interpret this constitutional provision in a nonoriginalist way. If the liberal justices adopt the originalist interpretation of this provision in the future, however, then the Rightwing justice will conform to the original meaning as well.
While this would have some benefits, ultimately I recommend against this strategic approach:
It seems unprincipled for originalists not to follow the original meaning simply because nonoriginalists do not follow it. One of the most powerful advantages that originalists have is that they appear to be principled—they are seeking to consistently follow an intuitively attractive theory. If they behaved in an unprincipled way and pursued their own values, they would lose much of their appeal.
It is true that the originalists could argue that they are simply responding to the nonoriginalists’ behavior, and doing so in order to promote originalism. But I do not think this argument would be terribly persuasive. Instead of pursuing originalism, the originalists would now be pursuing nonoriginalism part of the time, which is a problematic way of promoting originalism. And it is by no means clear that the Constitution’s original meaning permits them to engage in this strategy.
In addition to Smith’s essay and my response, there is also the interesting response by the always engaging Gordon Lloyd and a soon to be posted response by co-blogger Mike Greve.