At Law and Liberty, John McGinnis: The Crisis of Left Jurisprudence. From the introduction:
The rise of originalism is the most important development in constitutional jurisprudence in the last half century. As a sociological matter, its rise has been almost wholly associated with the Right, including both conservatives and libertarians. But it is also the source of a crisis for the Left, which needs its own compelling theory as a counterweight. To date, the Left has not found any unifying answer, because they found it is difficult to craft a theory that both respects democracy and yet protects many decisions that the Left holds dear, most importantly Roe v. Wade. To be sure, critics of originalism on the Left abound. But to criticize is to play defense. Battles are almost always won on offense.
The post then reviews several alternatives — democratic reinforcement (John Ely's theory); the court as an expression of popular will (Barry Friedman's theory); social movements; precedent; deference to legislative majorities — and finds them unsatisfactory. It continues:
Perhaps the most promising development in Left jurisprudence is the appearance of a left-leaning originalism. The most important theorist in this area is Jack Balkin, who has developed a theory of “framework originalism.” This theory, briefly stated, argues that the Constitution should be interpreted according to its original meaning but many, if not most, of the Constitution’s clauses do not have a very determinate meaning and judges should be able to fill in their interstices. The Left thus has space to pour progressivism into these empty vessels.
Unorthodox originalism may well be a contender for the Left’s best counter to originalism. But it faces both analytical and political obstacles. First, as Mike Rappaport and I have shown, increasingly originalist research discovers quite precise meanings to the kind of clauses that Balkin finds indefinite. Not surprisingly, the meanings do not tend to align with the social democracy or democratic socialism of the modern Democratic Party. Second, it is not clear that Balkin answers the democracy objection unless the Constitution delegates discretion to the judiciary. The duty to say what the law is implicitly assumed that judges were to apply the law, not choose it. And finally, for the truly woke, any reference to originalism is deeply offensive, as the Constitution is in the main the product of white males, some of whom owned slaves.
And in conclusion:
It is not clear what it will take for the Left to come up with compelling response to originalism. On the one hand, progressivism wants to embody the people’s will. On the other hand, some of the left’s favorite decisions don’t emerge either from the text that the people ratified or even from today’s democratic mechanisms. It is too soon to say that contemporary left jurisprudence is trying to square the circle, but the absence of a compelling and consensus alternative to originalism is especially striking—particularly given the dominance of the Left among constitutional theorists.
I think this is all right as far as it goes, but it does not contend with what I would identify as the leading constitutional theory on the center-left. That is what might be called interpretive pluralism (or, in a related form, constitutional common law). The idea is that there are a range of factors to be considered in finding modern constitutional meaning, including text and original meaning, but also precedent, practice, contemporary understanding, democratic values, moral values, pragmatic implications, and perhaps others. The approach goes back to Philip Bobbitt's description of multiple interpretive "modalities" in constitutional interpretation. In modern scholarship I associate it with Mitch Berman, Richard Fallon, David Strauss, and numerous others.
Interpretive pluralism has the advantage of being a fair descriptive account of what the modern Supreme Court actually does. It also has the advantage (to the interpreter) that, because it admits such a range of divergent factors, it can usually reach the conclusion the interpreter favors for policy reasons. (That's especially so because in most forms it acknowledges policy considerations as part of its analysis).
Interpretive pluralism is the reason that center-left commentators and judges can make originalist arguments without being hypocritical. If originalist arguments lead to favored conclusions, the theory makes them available. But using originalist arguments to resolve one issue doesn't require the pluralist interpreter to use them for the next issue, where their result might be less welcome. Instead, another "modality' can be invoked. That's the attraction of the theory.
But that's also the weakness of the theory. It's not clear that interpretive pluralism actually differs much from interpreters simply reaching their preferred policy outcomes and then reasoning backward. (I'm not suggesting this is done in bad faith — just that there is a very strong inclination, in picking among a range of factors, to pick the ones pointing to the "right" outcome). That's why interpretive pluralism works better as a descriptive theory than as a prescriptive one.
In the end, in assessing interpretive pluralism, the central question is probably the extent to which it does actually constrain interpreters. Its defenders would likely say it constrains to a significant extent — not entirely, because part of its attraction is that it allows interpreters to consider policy implications. But enough so that it differs (in a positive way, on stability and rule of law grounds) from simply casting judges as policymakers. (For what it's worth, I'm skeptical of its ability to constrain, so I think it must be justified, if at all, as a mode of judicial policymaking). But in any event it seems to be an important part of the alternatives-to-originalism debate.
Mike Rappaport adds:
I argue that interpretive pluralism does not constrain in these two posts from a couple of years ago:
Is Libertarianism the Law?: Part I The Modalities of the Law
Is Libertarianism the Law?: Part II Using the Modalities to Support Libertarian Results
Posted at 6:01 AM