At Dorf on Law, Eric Segall: If It Takes a Theory to Beat a Theory,” Originalism Loses. From the introduction:
Justice Antonin Scalia, who died 10 years ago this month, was fond of saying over and over again that “it takes a theory to beat a theory.” He often made this claim when people criticized originalism. Scalia’s point was that originalism skeptics did not have an alternative theory that was more persuasive.
Recently, Professor Josh Blackman repeated this trope, suggesting that neither the political left nor the American Constitution Society (ACS) have come up with an interpretive theory more persuasive than originalism. Professor Blackman argues that all the left and ACS can show for their efforts fighting originalism is anti-Trumpism and anti-conservatism but no positive theory of constitutional interpretation.
This argument was ridiculous when Scalia repeatedly yelled it at his many audiences prior to his death, and it is even more ridiculous today when Professor Blackman tries to give it new life. The reality is that originalism is not a theory of constitutional interpretation that gives judges meaningful guidance how to decide constitutional law cases or constrains judges in any way. And it is equally untrue that the left does not have a theory to counter originalism. Scalia’s and Blackman’s arguments are completely unpersuasive.
Let’s begin with Scalia’s and Blackman’s claim that the left has no meaningful theory of constitutional interpretation that could compete with originalism. For decades, the left has detailed a theory of pluralistic constitutional interpretation that is more persuasive a theory of constitutional interpretation than originalism. This theory, embraced by scholars such as Phillip Bobbit, Larry Tribe, Jack Balkin, Reva Siegel, Mike [Dorf], and many others, argues that when deciding constitutional law cases judges should look at text, history, tradition, precedent, and consequences. Neither the left generally nor ACS specifically believe that judges should just “make stuff up,” or use their own values, but rather judges should engage in the type of common law method that Professor David Strauss has so well described and that has been part of our law since well before the Founding.
Moreover, as we shall see, one of the great benefits of this theory of constitutional interpretation is that it is a much more accurate description of what judges actually do and have done for over two centuries than originalism. But the main problem with the trope that it takes a theory to beat a theory in the context of comparing originalism with other methods of interpretation is that originalism is not close to a single theory of constitutional interpretation. …
Posted at 6:18 AM