Cass Sunstein is proof that you can reach the pinnacle of the legal professoriate without ever taking your intellectual adversaries seriously enough to learn something about what they actually argue. In a Bloomberg column, Sunstein attacks originalism with the hoariest old discredited arguments that one is ever likely to see, and his favorite ploy is the straw man.
Writing of Justices Scalia and Thomas (who might evidence some interesting differences if one looked at their opinions closely), Sunstein allows that they believe “the job of the judges is to go into a kind of time machine and learn what history tells them about the ‘expected applications’ of these provisions.” This is at best a crude distortion, and at worst plainly false. Originalists try to discern the Constitution’s original meaning in order to discern its principles, and the logic of their reach and application. Nothing about originalism tethers its practitioners tightly to the narrow “expected applications” demonstrably in the minds of any framers or ratifiers.
Sunstein may have in mind, by “expected applications,” something along the lines of another fault he imagines, when he asserts that originalism is oblivious to “changed circumstances,” writing:
In prohibiting unreasonable searches and seizures, the ratifiers of the Fourth Amendment couldn’t have anticipated wiretapping, much less the Internet. But it would be absurd to think that the government has unlimited power to tap our phones and monitor our e-mails.
Wow, is there a more tired anti-originalist argument than this? And is there a single originalist anywhere who would be guilty of Sunstein’s imaginary faux pas of believing the Fourth Amendment doesn’t apply to wiretapping because there were no wires to tap in 1791? No, and no.
But my favorite, in the too-clever-by-half department, is when Sunstein writes:
Did those who ratified the Constitution embrace originalism? If not, originalism turns out to be self-contradictory, because the original understanding rejected originalism as Scalia and Thomas understand it.
This founders-rejected-originalism-so-we-should-too argument was most prominently on display some years ago in Jack Rakove’s book Original Meanings. At book length, the argument was clever, but not convincing. Everything we know about the legal mind of the eighteenth century suggests that it was steeped in premises and interpretive methods we would identify today as originalism (a term that did not need to be used and hadn’t been invented when everyone thought this way).
But even if Sunstein’s assertion—or Rakove’s book—were correct, it would not follow that originalism is “self-contradictory,” discredited, or wrong, at least not for Sunstein. For on Sunstein’s own premises, a method of judging is chosen for its fitness with the judicial task of producing intelligible legal outcomes that are both principled and consistent with our form of government. From a Sunsteinian perspective, therefore, an absence of evidence that the founders were originalist—or even evidence that they were not—could not possibly discredit the judicial choice to be an originalist.
This was Sunstein’s best argument. And it turns out to be his worst.