[Continued from Part 1]
Ninth Circuit nominee Goodwin Liu’s attack on originalism in Keeping Faith with the Constitution is also shoddy. Liu claims that originalists believe that “modern constitutional controversies should be resolved on the basis of what the framing generation understood the text to mean in application” (p. 25 (emphasis added)). He thus imputes to Justice Scalia and other originalists the position that original meaning is limited to actual original expected applications. As I have previously explained, Scalia’s originalism is clearly not limited to original expected applications. Rather, Scalia’s focus on the objective public meaning of constitutional text involves a hypothetical inquiry that asks how a fully informed public audience living when a particular provision was adopted would understand that provision.
To be sure, Liu states that his “view of constitutional fidelity is not at odds with originalism if originalism is understood to mean [1] a commitment to the underlying principles that the Framers’ words were publicly understood to convey, as opposed to [2] the Framers’ expectations of how those principles would have applied at the time the were adopted” (p. 35). He exempts from his criticisms those who hold the first position. But the dichotomy that he posits is a false one that excludes the vast middle ground in which original meaning is informed by original expected applications but is not limited to them.
Liu contends that “originalism as a complete and exclusive theory of constitutional interpretation founders on two decisive objections”: first, it is indeterminate, and, second, “it cannot account for many of the constitutional understandings that Americans take for granted today” (pp. 37-38).
Let’s take these objections one at a time.
First, while I believe that Liu’s misunderstanding of originalism leads him to overstate the indeterminacy of originalism, I agree with him that originalism alone will not clearly resolve every constitutional question. But I don’t see this as a troubling defect. As I’ve written in the chapter that I’ve contributed to the new book Freedom and the Rule of Law:
An original-meaning approach is a necessary component of sound judging. And, for the vast bulk of issues that have been hotly contested in recent decades, it is sufficient. But there are also judicial cases in which original meaning, even together with any appropriate canons of construction, does not yield clear answers. In a democratic republic, principles of judicial restraint properly supplement originalism.…
[W]hen originalist methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments. Reasonable people can dispute how to define the requisite level of clarity, and it may even be that the level will vary depending on context or the constitutional provision at issue. But a law professor’s mere best guess as to constitutional meaning cannot be a judge’s basis for trumping the majoritarian process. Thus, when originalism is allied with judicial restraint, the fact that originalism will not always yield sufficiently clear answers is not, as some critics mistakenly think, a fatal or even a significant defect and does not somehow render originalism unworkable. Rather, that situation calls for judges to apply statutory law.
Liu also seems somehow blind to the fact that his everything-and-the-kitchen-sink approach is at least as indeterminate as originalism.
Second, and again subject to Liu’s misconception of originalism leading him to overstatement (including on Brown vs. Board of Education, as I discuss in this essay), I also generally agree with him that originalism “cannot account for many of the constitutional understandings that Americans take for granted today.” That might well be a relevant objection to originalism if the project of originalists like Justice Scalia were to correct every wrong precedent. But as Scalia has explained in A Matter of Interpretation:
“Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.… Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”
Liu’s own approach can account for all of the “constitutional understandings that Americans take for granted today” only because it is so infinitely malleable. Moreover, it’s hardly a surprise that unsound Supreme Court rulings would misshape the “constitutional understandings that Americans take for granted.” That fact ought to counsel against freewheeling judicial inventions, not, as Liu would have it, be used to justify yet more of them.