At Liberty Law Forum, Ed Whelan: The Use and Abuse of Originalism (responding to Professor Somin's Liberty Forum essay How Originalism Promotes Liberty). An excerpt:
Whether a method of interpretation succeeds in gleaning the meaning of a legal text is a different question from whether those purportedly governed by that legal text should accept that meaning as binding. As law professor Lawrence Solum puts it, the first is a “claim about meaning,” whereas the second is a claim about the “moral significance” of that meaning.[1]
Somin’s essay, as I understand it, bears only on this second question. His evident goal is to persuade his fellow libertarians, and others who place a high value on negative liberty, that they should be inclined to accept an originalist reading of the Constitution as morally binding. Why? Because an originalist reading, according to his argument, is more likely than competing interpretive methodologies to protect negative liberty.
Somin’s consequentialist justification for originalism strikes me as weak (even beyond its admitted incompleteness) and disabling. What I find especially curious is that he does not build on any claim that originalism, or some version of it, accurately interprets the meaning of the Constitution.
The proposition that originalism is the soundest method of constitutional interpretation cannot, by itself, establish that the constitutional readings it generates are morally binding on Americans. But, unlike Somin, I would make this proposition an essential part—indeed, the principal part—of my normative justification. All that needs to be added to it, I would suggest, is something like the “fidelity thesis” that Lawrence Solum sets forth: namely that,
in a reasonably just society, citizens, officials, and judges should adopt an attitude of loyalty towards the law and comply with a corresponding obligation to comply with the law absent overrid[ing] reasons of morality.
To put my point somewhat differently: I agree with Somin that the normative justification for an interpretive theory—in his words, why “we should obey” it—depends on “some value or set of values external to the text itself.” Somin seems to think that this means that the normative choice among competing theories must rest on an assessment of their consequences, “on their effectiveness in promoting specific values.” But I would instead invoke the external value that, in a reasonably just society, it’s presumptively wrong to lie about, or to misstate, what the Constitution means.
Somin’s exclusive focus on consequences would severely impair him in contesting the competing consequentialist claims made by proponents of other interpretive theories (if indeed the term “interpretive” can even be sensibly applied to living-constitutionalist theories that leap as quickly as possible away from constitutional text). These proponents will of course have their own conceptions of liberty and other values that they think constitutional theory should advance. On what basis can Somin argue that his normative justification is more compelling than theirs—if, that is, he doesn’t build on an underlying claim that originalism is more accurate in generating the real meaning of the Constitution?
There are several other important points in the essay, including thoughts on democratic self-governance and judicial restraint.
I'm generally with Ed Whelan here. To the extent Professor Somin is claiming that originalism should be preferred because it promotes liberty, I find that worrisome in the sense that it is so contingent. First (as Professor Somin acknowledges) it suggests that while originalism is a good approach for the U.S. Constitution, it might not be for other constitutions (or statutes), reinforcing the idea that originalism is just one tool among many for reaching the right result.
Second, although originalism generally may promote liberty, presumably it doesn't always do so (for example, an aggressive doctrine of substantive due process promotes liberty, at least in the libertarian sense, but most originalists don't think substantive due process can be justified). If the goal is liberty, why use an originalist approach to clauses that aren't liberty-promoting in their original meaning? Why not use a broader approach that uses originalism when it helps reach the goal and otherwise uses something else?
Third, to extend the prior point, if the goal is liberty why not cut out the originalism middleman altogether and simply choose the interpretation that most promotes liberty? Professor Somin has some responses but I don't find them persuasive.
I agree that originalism needs a normative justification but I think the justification is stronger if it's independent of particular results. I would say that the justification is principally the rule of law and the benefits that flow from it (which I think is related to what Ed Whelan is saying).
Posted at 6:45 AM