In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism. Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism.
But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument. I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning is unclear, the Court may also claim the power to decide based on other considerations, such as government practice, but it does not assert the power to ignore unambiguous provisions.)
This point does not mean that nonoriginalism is illegal, because the Court can decide cases that conflict with the original meaning simply by staying silent about the matter. Certainly, the Court has not followed the original meaning in many cases, without claiming the authority to ignore the original meaning.
But this limitation (that the Court can ignore the original meaning by remaining silent) does not make the basic point unimportant. One significant effect of this point is that a large percentage of the academic theorizing about the U.S. Constitutional Law – which assumes that the courts can depart from the original meaning of the Constitution – is inconsistent with the rule of recognition. That is, this theorizing is inconsistent with the law of the land at present. This is an important conclusion and one that nonoriginalists have largely failed to address.
An interesting question involves the continuing existence of the Court’s practice of deciding cases in a manner inconsistent with the original meaning without addressing the issue. As there are now at least two originalists on the Supreme Court, one can expect that these justices will attempt to prevent a Supreme Court majority from simply asserting a constitutional interpretation that ignores the original meaning. The originalists will criticize the majority’s decision, and in many cases this will force the majority to respond. How they will do so will have an important effect on the content of the law. There are several possible responses:
- One possibility is that the majority will openly acknowledge that it is asserting the power to ignore the original meaning, even in cases where no precedent is involved. I predict this will not happen, because it would be politically damaging to the majority’s approach.
- Another possibility is that the majority will agree with the dissenters, changing its mind on interpretive matters. This does not mean the majority will always agree with the two originalists on results, but that it will use similar interpretive approaches. This strikes me as very unlikely as well.
- A third possibility is that the majority will continue to remain silent as to the authority to violate the original meaning in certain cases by simply not responding to the dissenters. This may be difficult to do, but it is certainly a possibility.
- Another possibility is that the majority will claim to be following the original meaning, but will read the original meaning as containing an abstract provision that allows modern judges to provide significant content to the provision. This strikes me as the most likely possibility.
Under this last possibility, all of the justices will sound like originalists, but will not change their interpretations. This approach resembles the perspective of Jack Balkin. In my view, this is something of an improvement for originalists, but it does not mean full victory – it merely means that the debate is shifted to a different ground – whether or not the original meaning of a provision is abstract.