Over at The New Rambler, a book review journal sponsored by the University of Chicago, Harvard professor and former Obama administration official Cass R. Sunstein has a piece reviewing How Star Wars Conquered the Universe. The book (which I haven’t read) is about the Star Wars franchise, but somehow Sunstein works his way around to bashing originalism.
The first three movies in the Star Wars franchise were released between 1977 and 1983 and were numbered episodes IV through VI. We had to wait 17 more years for episodes I through III, which were released beginning in 1999. (After seeing those movies, some of us wish Lucas had kept us waiting indefinitely.) George Lucas apparently claims that he wrote the story for the entire Star Wars series before the first movie was ever made, but the book argues that in fact, Lucas transformed the plot line over time. If so, then Lucas’s post hoc claims to have been carrying out an original intention are all hooey.
Sunstein draws similarities between Lucas’s creative process and Ronald Dworkin’s analogy comparing legal reasoning to the writing of a chain novel. In Dworkin’s analogy, each author is responsible for improving the novel:
Assume that ten people are charged with producing a novel, with each person asked to produce a specified chapter. Jones writes chapter one – say, about a woman, a business traveller, who turns out to seated next to a man on a plane, also a business traveller, on a flight from New York to San Francisco. Smith writes chapter two, and details the conversation between the two. As Smith develops the plot, neither is married, and romantic sparks start to fly between them. Now it is Wilson’s turn. What will her third chapter look like?
Dworkin urges that if she is to be faithful to her task, she will want to make the emerging novel the best that it can be. To do that, she will have to fit what has gone before. If the flight suddenly diverts toward Tatooine (Luke’s home planet), or if the woman turns out to be a Sith, the story will lose coherence (unless Wilson is very clever). Simple and abstract though their chapters are, Jones and Smith have imposed real constraints on Wilson. But within the constraints of fit, Wilson will have many options, some evidently better than others. If the two characters lose interest in one another and start reading the newspaper, the plot will not go anywhere. If the woman in the story turns out to be a fugitive from justice, because she worked for the CIA and has recently been accused of leaking classified materials, the story might turn out to be pretty interesting, or perhaps pretty silly.
Like the chain author, the judge is supposed to write the best next chapter of constitutional law, by which Dworkin means case law. Sunstein picks up on this theme to argue that, like Lucas, originalists are necessarily revisionists and when they describe themselves as seeking the original meaning of texts, are “suppressing the nature of their own creativity and authorship” as they interpret the Constitution.
On the whole, Sunstein makes some good points. We would all do well to remember that much constitutional law originated in political situations and environments that were contingent, not inevitable. Supreme Court case law is often inconsistent with the Constitution, prior case law and even with recent decisions. No originalist would disagree with those propositions. But it’s a bit odd to criticize originalists for even trying to make sense of current case law using originalist tools. Before declaring a nonoriginalist decision “wrongly decided” one at least ought to know if the result was right, even if the court came to it for the wrong reasons. This is how the common-law reasoning process works.
Sunstein’s choice to emphasize the contingency of “constitutional law” in connection with originalism occasions more confusion along these lines. As I noted before, Sunstein’s use of the phrase “constitutional law” refers to case law, not to text. But to originalists, case law is an interstitial, subordinate form of law. Supreme Court decisions must be faithful to the original meaning of the instruments they purport to interpret, not just the court’s own prior decisions. Supreme Court justices don’t get to sit around declaring new rules as if they were common-law philosopher-kings; they are bound by higher laws, namely, the text of statutes and the Constitution. Accordingly, originalist case law is always ultimately tentative, not a independent source of law that can trump authoritative texts.
Put another way, originalism articulates a standard for evaluating whether current cases are rightly decided. This is why, for instance, there can be lively debates between originalists about the proper role of stare decisis at the Supreme Court. Two originalists could disagree about the meaning of the Emoluments Clause or whether the clause requires a particular outcome in a particular case, but their disagreement just shows that at least one of them is wrong, not that they’re both “disguising the essential nature of their own creative processes.”
Indeed, Sunstein’s critique is better directed at interpretive theories that call explicitly for judges to engage in Lucas-style rewriting, or that rely on judicial intuitions more than on text. Under “living constitutionalism,” “active liberty,” or Dworkin’s theory, how could a judge possibly distinguish her own intuitions and impressions from the analysis they guide? The problems Sunstein identifies with creativity and post hoc rationalization are utterly confounding to atextual approaches. No originalist is immune to confirmation bias or result-orientation, obviously, but originalism at least relies on objective tools, like text, historical and linguistic sources, and legislative history, while also aiming at an external standard.
While we’re on the subject of originalism, perhaps we should pose a question to Sunstein: How do we find out whether Han shot first?