Stone/Marshall Critique of Judicial Conservatism—Part 1

“The sad truth is that Whelan’s analysis is largely correct.” That’s law professor Geoffrey Stone’s assessment of my recent argument that “the battle over the proper role of the Supreme Court is a political winner for conservatives.”

Alas, Stone quickly strays from that promising start, as he contends that conservative propositions about judging are “false—and dangerous to the American constitutional system.” Stone and fellow law professor William P. Marshall elaborate this critique, and sketch their own effort at a “principled approach to constitutional interpretation,” in a six-page American Constitution Society essay. As I will address in this and two or so additional posts, the happy truth is that Stone’s and Marshall’s analysis is largely incorrect.

Stone and Marshall allege two fundamental flaws in originalism:

First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of “freedom of speech” or “due process of law” or “regulate Commerce … among the several States” or “privileges or immunities” or “equal protection of the laws,” it is difficult if not impossible to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence.…

The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit.

Let’s take these one at a time.

1. In their focus on the subjective intentions of “those who enacted” constitutional provisions, Stone and Marshall implicitly assume that originalists are advocating the “original intent” species of originalism rather than the dominant “original meaning” version (which looks to the public meaning of provisions at the time they were adopted, not to the subjective intentions of the proposers or ratifiers). That mistaken assumption vastly exaggerates the indeterminacy of originalism, for it is surely much more difficult to establish the collective subjective intentions of the Framers than it is to establish the original public meaning of the language they adopted.

That said, I agree with Stone and Marshall 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 contributed to the 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.

Even then, I readily concede that “judges purporting to engage in originalist analysis” might instead “project onto the Framers their own personal and political preferences.” Because judges are human, the danger of judicial willfulness inheres in every judicial approach. But Stone’s and Marshall’s own approach, which is clearly less determinate than originalism, is even more vulnerable to this danger. Indeed, originalism has the advantage of offering an objective standard against which a judge’s holding can be measured.

It’s much more difficult, if not an insane exercise, to try to assess whether (under Stone’s and Marshall’s approach) a judge’s holding “give[s] life and substance to [the Constitution’s broad] principles in an ever-changing society.” The inevitable result is that judges using Stone’s and Marshall’s approach will have much broader freedom to, and indeed will be virtually invited to, indulge their own personal and political preferences. And any criticisms that Stone and Marshall can offer of originalist judges are dwarfed by the criticisms that liberal judicial activists applying Stone’s and Marshall’s approach have earned over recent decades.

2. Stone’s and Marshall’s “second problem with originalism” rests entirely on their own misunderstanding of it.

Stone and Marshall cite zero authority for their contention that originalism “asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time.” (Emphasis added.) No originalist theorist of whom I am aware makes such an assertion. Justice Scalia, the most prominent proponent of originalism, certainly doesn’t. As I have previously explained, Scalia’s originalism is clearly not limited to actual original specific understandings. 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.

In sum, Stone’s and Marshall’s attack on originalism fails badly.

In the next posts, I will address more directly the alternative to originalism that Stone and Marshall advocate.

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