It's Alive. It's Alive!

In my latest FindLaw column, I use a recent speech by Justice Scalia condemning "the living Constitution" as an occasion to defend the metaphor and the philosophy for which it stands. My core point in the column is that Scalia and other originalists mischaracterize the position of "living Constitutionalists" as seeking to displace the Constitution with their own values rather than being bound by the Constitution and the original understanding. You can read the column to see whether you think I make a persuasive case. Here I want to tackle a related objection that Justice Scalia has made to non-originalist methods of constitutional interpretation. He has set it out most forcefully in his 1989 article in the Cincinnati Law Review, Originalism: The Lesser Evil. Here is what Justice Scalia says:

Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that “You can't beat somebody with nobody.”' It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote “non-Reagan,”' it is not very helpful to tell a judge to be a “non-originalist.”' If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the “fundamental values”' that replace original meaning to be derived from the philosophy of Plato, or of Locke, or Mills, or Rawls, or perhaps from the latest Gallup poll? This is not to say that originalists are in entire agreement as to what the nature of their methodology is; as I shall mention shortly, there are some significant differences. But as its name suggests, it by and large represents a coherent approach, or at least an agreed-upon point of departure. As the name “‘nonoriginalism”’ suggests (and I know no other, more precise term by which this school of exegesis can be described), it represents agreement on nothing except what is the wrong approach.

In the past when I've taught a seminar in constitutional interpretation, I've lampooned part of this argument by the following parallel: I have the right approach to constitutional interpretation, I say, and it's "Dorfism." All the other approaches--including originalism, fundamental values, representation reinforcement, pragmatism, etc.--disagree about all sorts of things. All they can agree on is that they are all "non-Dorfists." As this example is meant to show, the fact that the people who disagree with you also disagree among themselves does not mean that you are right and they are all wrong. One of them could be right and you and the others wrong. But of course Justice Scalia doesn't just say that non-originalists disagree among themselves. He also says that their methods are arbitrary and lead to nothing fixed, while the differences among originalists are relatively minor. (That's one reason why he calls originalism the "lesser evil" rather than the "unadulterated good." The other reason is that it sometimes leads to dreadful results, but Justice Scalia says that we needn't worry about that much because democracy will come to our rescue or originalist judges will turn "faint-hearted.") Is Justice Scalia right that originalism is a reasonably well-fixed methodology? An interesting new paper by Professors Tom Colby and Peter Smith of George Washington Law School says no. In Originalism's Living Constitutionalism, Colby and Smith contend, as they say in the paper's abstract, that:

despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally are in agreement only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the writtenness of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists - the framers of originalism, if you will¿as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that they have articulated - and continue to articulate - a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, we argue, originalism is a jurisprudential theory with its own living constitutionalism.

Posted by Mike Dorf