In today’s Washington Post, Stuart Taylor, Jr. argues that originalism is no safeguard against “subjective judicial policymaking.” It is not clear whether he thinks originalism is no better at avoiding subjectivity than alternative modes of jurisprudence–and come to think of it, I’m not even sure whether Taylor regards subjectivity as a problem exactly. But in any event, I think his case is remarkably weak when he elaborates his four reasons not to put much stock in originalism.
“First,” he writes, “there has never been a consensus on the original meaning” of some of the clauses of the Constitution, and the Framers themselves disagreed on some questions. This is a kind of dangerous half-truth. We can be absolutely sure, for instance, that no plausible version of “original meaning” would produce a right to abortion, or gay marriage. A great deal of our current trouble could have been avoided if at least this much of the known “consensus” on original meaning were in place in our jurisprudence.
Second, Taylor says, “any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live.” I quote this much because, well, I’m not even sure what this means. Does Taylor mean that original meaning is lost in a historical fog, or that Americans have changed their minds about what the Constitution means, but we know what was once thought and how it differs from what is now thought?
Taylor goes on to give the example of the dueling originalist arguments in the 2008 Heller case on the Second Amendment, but I can’t tell how this example helps his argument at this point (or at any other). Scalia and Stevens disagreed on what the amendment’s original meaning was or is. Why is it not perfectly sensible to say merely that they both can’t be right, but that one of them might be? I prefer Stevens to Scalia in this case. Most conservatives prefer Scalia to Stevens. Okay, I’m wrong or someone else is–or maybe both of us. Taylor simply makes me scratch my head here.
“Third, even when the original meaning is clear, almost everyone rejects it as intolerable some of the time.” Taylor gives the example of the Fifth Amendment being held to contain an equal protection “principle” even though it contains no equal protection clause. This is a violation of originalism but “almost everyone” likes it. I hereby declare, not everyone. Not me. I guess I’m the almost in Taylor’s “almost everyone.” But how is this argument a strike against originalism, rather than a strike against “almost everyone”?
Fourth, there are precedents that contradict the original meaning. And this is a problem for . . . the survival of the precedents, right, Mr. Taylor?
By the way, did you notice that Taylor’s third and fourth arguments presume the availability of stable knowledge of original meaning, and presuppose that we must choose whether to follow it? Whereas his first and second arguments call such presumptions into question?