Bench Memos

Law & the Courts

Contra Ilya Somin on Libertarian Originalism

In the final round of the Law and Liberty website’s symposium on his essay on “How Constitutional Originalism Promotes Liberty,” Ilya Somin replies to the responses that Hadley Arkes, Peter Lawler, and I provided. As Somin notes, his “most extensive disagreements” are with my piece. I’ll use this post to respond briefly to his disagreements.

1. I argued that Somin’s consequential justification for originalism struck me as very weak, and I maintained that a normative justification for originalism should build on the essential rightness of originalism as a method of interpretation. In his reply, Somin, as I read him, denies the essential rightness of originalism. Indeed, he seems to dismiss as “circular” reasoning any argument that originalism is methodologically sound. He contends instead that a non-originalist interpretation that conflicts with an originalist interpretation “can be both useful and accurate, given the purpose which it is intended to serve.” He then proceeds to defend the accuracy of non-originalism by comparing it to a “Freudian or Straussian interpretation” of Hamlet.

Somin’s reply thus deepens my concern that his embrace of originalism is opportunistic—that he uses it merely to serve his desired purposes. [Update: At the end of this Volokh Conspiracy post calling attention to the symposium pieces, Somin replies to this point of mine. I’ll pass on a sur-sur-sur-surreply.] 

Somin also seems to think that I’m aiming my normative argument for originalism at living constitutionalists. Not at all. I certainly don’t expect anyone who rejects or dismisses the methodological soundness of originalism to be persuaded that originalist interpretations are presumptively morally binding. My normative argument is instead intended for avowed originalists—a class to which I had thought that Somin belonged.

2. I offered some praise for the liberty to engage in collective self-government, along with concern that libertarian promotion of an activist role for the judiciary will have the unintended effect of advancing progressive judicial activism. Somin provides a far-ranging reply that I won’t try to summarize and that I can’t succinctly respond to, so I’ll just stand on my initial observations and invite interested readers to read the full exchange.

3. I criticized Somin’s account of the supposed line between nondeferential originalism and deferential originalism. Among other things, I stated:

So far as I’m aware, of the many originalist proponents of judicial restraint, there are few if any actual “Thayerians.” (Two particularly well-versed originalists have privately identified for me one possible candidate.)

Somin replies that he “had in mind such prominent conservative jurists as Professor Lino Graglia and Judge J. Harvie Wilkinson.” Well, Graglia was the “one possible candidate” whom others had identified for me. Wilkinson, however, is not an originalist proponent of judicial restraint, as he rejects originalism. (I also gather, both from this review of his book and from his judicial record—example here—that he’s far from being a Thayerian.) So I suspect that the Graglia example exhausts Somin’s list.

I also argued that Somin mischaracterized an article by John McGinnis. Somin responds that “[f]air-minded readers can decide for themselves which of us has interpreted McGinnis more accurately.” Indeed they can. Somin then contends that McGinnis “shows that an originalist understanding of judicial review allowed judges to strike down laws even in cases where there was a serious and plausible case for their constitutionality,” so long as the judges (Somin is quoting McGinnis here) “can find a clearly better reading that condemns it.” (Emphasis added.) Well, I’m not sure how, at the end of the interpretive process, a reading can still be said to be “serious and plausible” if “a clearly better reading … condemns it.”

In any event, Somin acknowledges that he “might go farther than McGinnis … in rejecting deference.” Strike might. Somin specifically defends judicial invalidation of a statute that is only 51% likely to be unconstitutional. But a reading of a constitutional provision that is 49% likely to be wrong can hardly be said to have a “clearly ascertained” meaning. McGinnis’s description of his approach as a “deference theory” would make no sense if it would lead to invalidating statutes that are only 51% likely to be unconstitutional. (For an originalist argument in favor of deference, I refer readers to McGinnis’s article.)

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