Here is Ilya Somin's response to my comment on his Liberty Law Forum essay: The rule of law as a justification for originalism. It's a long and insightful post — here is a sense of it:
He [ie., me] argues that the case for originalism should not be based on “contingent” consequential factors. After all, even if originalism does promote liberty in some cases, it might not do so in others. It should instead be justified based on considerations “independent of particular results.” The principal such justification, in Ramsey’s view, is “the rule of law and the benefits that flow from it.
The rule of law is a slippery term with a number of different possible meanings. But unless it is defined circularly as the enforcement of the original meaning of a law regardless of content, the relationship between originalism and the rule of law is no less contingent than the connection between originalism and liberty.
For example, the rule of law is often defined in contrast to “the rule of men.” Whereas the former is based on general, impersonal rules, the latter is subject to the vagaries of the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. The original meaning of some parts of the Constitution could potentially give wide-ranging discretion to government officials, that gives them broad scope to apply various personal biases.
I pretty much agree with what Professor Somin says here, and in similar vein later in the essay. Perhaps the most that can be said for originalism is that it offers the possibility of the rule of law, if the document being interpreted contains somewhat definite rules. But I nonetheless think that's not a bad argument for originalism. First, it beats the prominent alternatives — in particular, living constitutionalism necessarily offers less of a possibility of the rule of law, because it embraces, in effect, whatever the judge of the moment thinks is best. Second, people writing the rules (in whatever context, but especially in constitutions) have an incentive to write definite rules (otherwise, they lose their ability to influence later decisions). I readily admit that, depending on the circumstances, they may have competing incentives to be vague and imprecise. But the incentive to control future actors — which is a fundamental motivation for writing rules in the first place — suggests that, on average and over time, written rules should tend to contain definite content, and thus adherence to those rules as written (i.e., originalism) is likely to produce a stronger version of the rule of law than the alternatives.
Posted at 6:26 AM