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Originalism

Originalism: Standard and Procedure

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a standard, not a decision procedure. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.

Distinguishing standards from decision procedures explains originalism’s tolerance for uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.

It would be nice if the correct constitutional theory also gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.

Introduction

Many debates over originalism seem to go in circles. Originalists say our law depends on facts about the past. Nonoriginalists respond that these facts are unknown to us, that lawyers and judges are bad at doing history, and that originalism can be a cover for conservative politics (or insufficiently conservative politics). Originalists respond that all this may sometimes be true, and if so unfortunate, but that it doesn’t undermine the argument for originalism. Nonoriginalists wonder how anyone could disregard matters of such importance. And so it goes.

One way to escape these circles is to borrow a well-recognized distinction from philosophy, that between a standard of rightness and a decision procedure. Consequentialists, for example, have a standard for right action: an act is right if it has the best consequences.1×1. See, e.g., Derek Parfit, Is Common-Sense Morality Self-Defeating?, 76 J. Phil. 533, 534 (1979) (describing “Act Consequentialism” as “giv[ing] to all one common aim: the best possible outcome”). We might not know which acts do this, and the theory gives us no procedure for finding out; there’s no “consequentialist method” for making real-life choices among real-life acts. Yet consequentialists think they have good arguments for their standard nonetheless. (“What, do you want worse consequences?”)

So too for originalism. As Professor Christopher Green has explained, constitutional theories need “truthmakers”: features that make correct legal statements correct and true constitutional claims true.2×2. Christopher R. Green, Constitutional Truthmakers, 32 Notre Dame J.L. Ethics & Pub. Pol’y 497, 499, 506 (2018). For originalists, the right answers to constitutional questions might depend on our original law,3×3. See, e.g., William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457 (2019); Jeffrey A. Pojanowski & Kevin C. Walsh, Enduring Originalism, 105 Geo. L.J. 97, 99 (2016); Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 838 (2015). or perhaps on the original meaning of the Constitution’s text.4×4. See, e.g., Larry Alexander & Saikrishna Prakash, “Is That English You’re Speaking?” Why Intention Free Interpretation Is an Impossibility, 41 San Diego L. Rev. 967, 976 (2004); Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 456 (2013). What these theories don’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding out what those answers are. To call originalism an “interpretive methodology” is something of a misnomer, as there’s no particular method to follow: the theory picks out a destination, not a route. Yet originalists think they have good arguments for their standard nonetheless. (“What, do you want wrong answers?”)

To be clear, originalism may well provide clear answers to some very important and controverted questions.5×5. See William Baude & Stephen E. Sachs, Originalism’s Bite, 20 Green Bag 2d 103, 108 (2016) (listing some possibilities). But that’s not the test of a good standard. Whatever the best account of legal truth may be, we shouldn’t demand that it also serve as the best at-home testing method for diagnosing legal truth — just as we shouldn’t require the best chemical theory of acids and bases to serve as an instruction manual for a box of litmus paper. What something is, and how we identify it in practice, are two different things.6×6. See Green, supra note 3, at 501–02. That said, if you’re trying to design a new kind of litmus paper, or just to understand chemistry, it helps to know what acids and bases are; and if you’re trying to make constitutional decisions, or just to understand constitutional law, it helps to know what makes those decisions correct.

This focus on standards, not procedures, helps explain originalists’ serene acceptance — or smug disregard, as their critics might say — of the difficulties of doing legal history or the frequent mistakes of prominent judges. Consider, again, the comparison to ethics. People often claim to be doing the right thing or to be making the world a better place. We may suspect that they’re falling down on the job, that they’re blinded by ideology or partisanship, and so on. But this hardly argues for ignoring ethics entirely, let alone for doing the wrong thing instead. If originalism is right about the law, then it’s right about the law, though it may be hard to carry out well.

Still, in practice we can’t do without a decision procedure, and good procedures are hard to find. This problem undermines some popular arguments for originalism based on its consequences, either for particular policies (say, gun rights) or for the legal system at large (say, constraining judges). The less we can find out about the original law, the less likely we are to benefit from looking for it.

But originalists don’t lack procedures altogether. Burdens of proof, waiver rules, and some forms of stare decisis might have their own originalist pedigrees, and they might help courts reach decisions when the substantive standards remain obscure. As in Professor Mitchell Berman’s discussion of operative rules and decision rules,7×7. See Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 9–10 (2004). or Professor Richard Fallon’s distinction between meaning and implementation,8×8. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term — Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 60–62 (1997). those aiming to satisfy a particular standard may follow a process more complicated than “do whatever adheres to the standard.” Bona fide originalists might develop new methods for adhering to old standards: the original package doctrine, say, needn’t have been mentioned by James Madison to have been a reasonably originalist way of applying the Import-Export Clause.9×9. See Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 441–42 (1827) (applying U.S. Const. art. I, § 10, cl. 2); cf. Low v. Austin, 80 U.S. (13 Wall.) 29 (1871) (applying the doctrine to general property taxes), overruled by Michelin Tire Corp. v. Wages, 423 U.S. 276, 301 (1976). The longstanding intra-originalist divide over “interpretation” and “construction”10×10. See Solum, supra note 5, at 457 (distinguishing the activity of discerning the meaning of a legal text from that of discerning its legal effect). can be seen as a battle over standards and decision procedures, with construction’s critics urging a search for accurate standards, and its supporters emphasizing the need for useful decision procedures.

At the same time, we can distinguish decision procedures that really seek to implement originalist standards from those that reflect judicial lawmaking. What we ought to do, legally, in cases of ignorance is one thing; what we ought to do, morally, is something else. In any case, if one wanted to argue for originalism based on a normative assessment of its consequences — and not every originalist does — there are still benefits to be found in the search for original answers, if not in their discovery.

This theoretical distinction also helps us avoid certain mistakes regarding originalism’s use in practice. We can’t assume that originalist standards will always be revealed in originalist-seeming decision procedures. Criticizing modern Justices for citing too few primary sources in their opinions, or claiming Chief Justice Marshall as a nonoriginalist because he did anything but cite primary sources, may be like impugning consequentialists for getting dressed in the morning without first thinking through all the consequences. What judges write down is only partial evidence of the procedures they use; what we really need is evidence of the standards they’re expected to follow.

The goal of all this isn’t to prove originalism true. Rather, it’s to show that “one type of argument against” originalism, “a type of argument which enjoys some popularity nowadays[,] is not a good type of argument.”11×11. Bales, supra note 1, at 257 (discussing utilitarianism). Misunderstandings like these aren’t unique to originalism; they afflict many nonoriginalist theories too, which also need the standard-procedure distinction (though its application to nonoriginalism is left as an exercise for the reader). They look like unique failures of originalism only if one sees originalism’s unique value as providing, not right answers, but easy ones. And if we have to choose, right answers count for more.


* Antonin Scalia Professor of Law, Harvard Law School. For advice and comments, the author is grateful to William Baude, Mitchell Berman, Samuel Bray, Josh Chafetz, Mihailis Diamantis, Daniel Epps, Sherif Girgis, Christopher Green, Adam Griffin, Earl Maltz, Judge Andrew Oldham, Richard Re, Daniel Rice, Amanda Schwoerke, Eric Segall, Michael Smith, Lawrence Solum, Justice Alex Stein, and Lorianne Updike Toler, as well as to the participants in the National Conference of Constitutional Law Scholars.
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