At NRO Bench Memos, Ed Whelan: Ruth Marcus’s Critique of Originalism Is Bunk (responding to Ruth Marcos' [paywalled] Washington Post essay Originalism is bunk. Liberal lawyers shouldn’t fall for it). From the introduction:
Washington Post columnist Ruth Marcus has written a nearly 5000-word critique of originalism titled “Originalism is bunk. Liberal lawyers shouldn’t fall for it.” From its unusual length, its confident pronouncements, and its over-the-top rhetoric (e.g., “insipid,” “rigged, dishonest bunk”), it would seem that Marcus imagines that she has penned a compelling takedown of originalism. But her critique is rife with confusions, straw men, and empty epithets.
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Marcus alleges four flaws that originalism suffers from. I’ll address them in turn. …
On the first "flaw" (which I think is the most important):
Marcus contends that originalism “offers the mere mirage of objectivity and therefore of constraint” and is a “fundamental[ly] futil[e]” enterprise. She quotes with approval the notion that “For most constitutional provisions, there is no ‘original meaning’ to be discovered.”
I have no quarrel with the proposition that there are many constitutional questions to which originalism cannot provide a clear answer. Nor, I think, do other originalists. But that is no reason to dismiss originalism when it can provide a clear answer. And on most of the hot-button questions of the past several decades (e.g., abortion), originalism clearly rejects the favored progressive position.
Originalists recognize the incompleteness of originalism as a judicial methodology, and they differ on important questions such as what level of certainty as to constitutional meaning is needed to decline to enforce a statute. I, for example, have defended a presumption of constitutionality, while many libertarians propose a presumption of unconstitutionality. There are also lots of methodological issues on which originalists hold various views. Marcus could fairly have cited this lack of consensus as a flaw in originalism.
I agree with all of this, and I'd add that many center-left commentators and legal scholars are very willing to make originalist arguments when they perceive that the original meaning helps their preferred view (as it sometimes does).
And in conclusion:
To her credit, Marcus acknowledges in the closing part of her essay what she calls “the hardest question of all”: What is the alternative to originalism? But she fails to come up with a meaningful answer. Repeating her misconception that originalism somehow prevents the Constitution from applying to and accommodating circumstances that the Framers couldn’t foresee, she writes:
But in the end, judging inevitably involves judgment — one hopes, good-faith judgment based on the individual jurist’s interpretation of the values embedded in the Constitution and the development of those values over time. [Emphasis added.]
That is a very thinly disguised invitation to justices to indulge their policy preferences.
With six appointees of Republican presidents now on the Court, would Marcus really prefer that the originalist justices adopt her approach?
Agreed, this is a key point. The alternatives to originalism are (a) strong judicial deference to the political branches, or (b) some version of living constitutionalism, meaning some version of, in effect, individual Justices' moral intuitions. Very few of the Court's critics believe (a), but surely (b) is a worse position for them, given the current Court, than originalism.
Posted at 6:28 AM