One of the criticisms made of originalism is that an originalist methodology does not constrain judges. Recently, I heard a nonoriginalist critic of originalism claim that an originalist judge can reach any result that he desires. Even if we interpret this claim as exaggeration, I still believe that the claim is unfounded.
It is certainly true that the original meaning of many constitutional clauses is contested. One of the reasons for this is nonoriginalism. Because the Supreme Court for many years was not interested in originalism, academics focused on other types of arguments.
As a result, we know much less about the original meaning of many constitutional clauses than we would if originalism had been taken seriously. If originalism continues to be influential on the Supreme Court, then we should expect to know much more about original meaning in the future.
But whatever the cause or whatever happens in the future, the criticism of originalism is focused on today: it is claimed that originalist judges can reach any result they desire. But this is mistaken.
Under many clauses, the original meaning is clear. The familiar examples of two Senators and a 35 year old President are just the tip of the iceberg. One example is the claim that the Federal Election Commissioners are officers of the United States and therefore had to be appointed in accord with the Appointments Clause – the holding in Buckley v. Valeo. This is clear, even though “officer of the United States” might not be thought to have the precision of “35 years.”
But even the most disputed clauses still have real limits to them. The words of these more disputed provisions, such as equal protection or due process, have a limited number of possible meanings. Most importantly, the history of these provisions – their meaning prior to their inclusion in the Constitution, during the debates on whether to enact them, and as subsequently applied under the Constitution – also has a limited number of possible meanings.
Consequently, while there are competing views of these provisions, there are only a limited number of possible interpretations. This means that some of the results that nonoriginalists desire and that can be reached by nonoriginalist methods will be precluded by originalism.
This is especially the case if one looks at the relative strength of these differing interpretations. People knowledgable about originalism will be able to criticize the weaker interpretations, which will make it more difficult to rely upon them. For example, while it is possible to use the Equal Protection Clause as a general prohibition on unequal legislation, there is a strong case that this is not the original meaning of the Clause. Relying on the original meaning (as opposed to precedent) for this interpretation would be a weak and vulnerable argument.
While a justice might be able to dishonestly reach any result they sought under originalism, that is not a simple matter. Most people, including the justices, do not like being dishonest. They want to be honest. If their most significant votes are based on dishonesty, especially if the weakness of the interpretation can be shown in a dissenting opinion, they will experience this as a significant cost and seek to avoid it. This will lead them to be more originalist – or more likely, to give up originalism.
Of course, there are different versions of originalism. Under Jack Balkin’s version of originalism, the conception of original meaning is very thin – and therefore Jack is able to reach many results that a more conventional originalist analysis would tend to preclude.
But Jack’s version of originalism is very controversial among originalists and clearly represents a minority view. At least under the bulk of originalist theorists, originalism would in practice involve a significant degree of constraint for a justice.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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