Jack M. Balkin (Yale Law School) has posted We Are All Cafeteria Originalists Now (and We Always Have Been) (William & Mary Bill of Rights Journal (forthcoming 2024)) (35 pages) on SSRN. Here is the abstract:
Americans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be.
Cafeteria originalism is not a pathology or a falling away from a pure or correct version of constitutional interpretation. Instead, the persistence of cafeteria originalism in American constitutional culture reveals the deep rhetorical structure of American constitutional law. That is why non-originalists make originalist arguments all the time without thereby being converted to the originalist creed. And that is why conservative originalists have always had to leaven their theories with qualifications, exceptions, and epicycles.
Cafeteria originalism is our law. The most plausible versions of interpretive theory — including the most plausible versions of originalism — make their peace with cafeteria originalism; indeed, they enjoy the smorgasbord. Cafeteria originalism has multiple uses in American legal thought. It offers a powerful rhetoric for legal reform. It clears the ground for new doctrinal development. And it helps people express their contemporary values through appeals to constitutional memory.
Interpretive theories lie downstream from constitutional culture. Within that culture, originalist arguments are simply one element of a larger collection of rhetorical strategies. This produces the effect called cafeteria originalism. From the standpoint of conservative originalism, this fact is a problem. But from the standpoint of American constitutional culture, it is perfectly normal. It is just what we do around here.
I mostly agree, as a descriptive matter. But (again, mostly) what is being described is rhetoric, not reality. "Cafeteria originalists" — including, to be sure, many judges — reach conclusions on other grounds and use originalism to justify conclusions already reached (when originalism is helpful to them). The originalist project — real originalism — would use originalism as a decisional tool to determine outcomes, not as a rhetorical tool to justify outcomes. This may not be what judges or (especially) legal commentators generally now do, but the originalism project is to change that.
I think, though, that recognizing "cafeteria originalism" has consequences for some leading fundamental critiques of real originalism. One critique is that determining original meaning is not really possible. The idea of "cafeteria originalism" suggests that this is not only a critique of originalism (that is, the aspiration to use original meaning as a decisional tool) but rather a critique of the broader American legal culture, which embraces the idea of determinate original meaning when it's helpful. Perhaps it's a fair critique (though I think not) — but in any event it's taking on much more than originalism; it's saying that our entire constitutional discourse is misconceived. The same could be said — only more so — of a second critique: that original meaning should not be the touchstone of interpretation because the original founding was undemocratic, closed to women, minorities, etc. Again, this isn't just a critique of originalism, but a critique of the broader legal culture that, under cafeteria originalism, appeals to original meaning some of the time. Thus neither critique works to discredit originalism alone; the prevalence of "cafeteria originalism" shows that originalism is actually just a subset of a legal mainstream that finds original meaning at least sometimes determinate and at least sometimes rhetorically attractive.
Posted at 6:29 AM