Originalism and Judicial Restraint, Incompatible as Applied

Public Discourse prints a problematic defense of originalism as a mode of constitutional interpretation, occasioned by a recent book by Judge Wilkinson of the Fourth Circuit, who candidly admits to its shortcomings. Per Gregory Sullivan, originalism shares none of the subjectivity of competing constitutional ideologies, and so should be above reproach:

Whereas Brennan, Ely, and Posner advance theories that inevitably result in judicial supremacy . . . originalism is the only interpretive approach that most consistently will restrain the Court. While Wilkinson is right about one criticism of originalism—its glib and often erroneous use of historical materials—this is a problem that is an abuse of originalism, certainly not its essence. In a fallen world, even a sound doctrine is open to such abuses.

First, I question the seriousness of any commentator who readily drops dog-whistle phrases like “judicial supremacy.” And in this case, caution is well-founded, because Sullivan essentially admits to originalism’s greatest flaw — its inability to cope with a “dense and often contradictory” historical record — before claiming that, but for its fatal flaw, originalism works. Sure. And if we ignore his stopped heart, yes, the patient is doing fine.

The complexity of history, and the fact that there’s always a competing historical narrative, aren’t just little problems. They fatally compromise originalism’s sole virtue — its pretension to objectivity. If judges can still choose results based on originalism, the doctrine allows just as much “judicial supremacy” as the next constitutional modality. But don’t take my word for it. Sullivan notes the problem himself. He just doesn’t think it matters.

Set against this vice is originalism’s great virtue: it closes the door on social progress issues, like gay rights and abortion:

The strength of originalism as a restraining force is found in the really controversial cases: those involving abortion, homosexual conduct, same-sex marriage, and so on. For originalists, these are easy cases. The history of the Fourteenth Amendment with respect to these issues is perfectly clear: they are not constitutional matters at all. The history, that is to say, is uniformly and unequivocally silent on these questions.

Query whether choosing a modality based on the outcomes it generates is any less subjective than the “results-driven jurisprudence of the Warren Court.” Regardless, it’s not clear to me that originalism, properly applied, actually offers easy answers to such social issues. Liberal originalists have demonstrated time and again that laws banning sodomy, banning abortion, or defining marriage are all modern creations. See, e.g., Lawrence v. Texas (“It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution”). And, homosexuality and abortion may not have been topics of ready conversation at the founding, but they’re both life choices of deep antiquity. Applying originalism purely, “unequivocal silence” in the record supports neither a positive right to engage in consensual sodomy, nor a negative right for the state to override the citizen’s interest in privacy, and criminalize such private conduct. Even on this “simple” issue, originalists can tell competing stories.

All of this should suggest that originalism isn’t about fighting “judicial supremacy,” defined as judges making subjective judicial choices. It’s about fighting “judicial supremacy,” defined as judges making subjective judicial choices that favor social progress. Here in turn is the great virtue of Brennan’s “risible” notion of the responsive interpretation: if we accept that all modalities of constitutional interpretation involve subjectivity, we might as well acknowledge that subjectivity, and deploy it cautiously to allow society to grow within the constitutional text. Better a Constitution that grows with its people, than one which steadily becomes irrelevant as society changes.

“Love is Strong,” by Fires in France

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