Jordan Perkins (Columbia University, Department of Political Science) has posted Thinking Institutionally About Judicial Review: Originalism, Judicial Supremacy, and the Concept of Law (48 pages) on SSRN. Here is the abstract:
In this essay, I intend to advance two primary ideas. In the first part, I argue that originalism, as a judicial philosophy incubated as a conservative reaction against the legislative excesses of the Warren Court, is intrinsically wedded to two core theses: (a) the (in principle) determinacy of legal rules and (b) judicial supremacy. By the ‘determinacy of legal rules,’ I mean the idea that, in all but borderline cases, a uniquely correct outcome can be determined, based on objective criteria, given the case’s facts and the legal principles most appropriately tied to those facts. This is the jurisprudential theory of legal positivism, which originalists [almost?] categorically accept. By judicial supremacy, I mean acceptance of the principle that the final interpretive authority of the Constitution is and should be the judiciary, as opposed to some other institutional actor. While generalizing about ‘originalism’ is dangerous, given the perhaps dozens of distinct varieties pursued by American legal scholars and jurists over the past half-century, I believe that these two ideas are intrinsic to most, if not all, strands of originalism widely utilized in the legal academy. Casting doubt on these theses would thus be a substantial contribution to contemporary debates over how the constitution should be interpreted. Primarily for their importance and familiarity to academic audiences, I focus on what I call two ‘old’ originalist jurists, Robert Bork and Antonin Scalia, and arguably the most central figure of ‘new’ originalist thought, Randy Barnett, to show how these two theses play into their versions of originalism.
In the second part of this essay, I argue that the first of these ideas, the determinacy of law, is unappealing because legal rules themselves are often not sufficiently outcome determinative to fulfill the role that originalists tend to presume that constitutional rules, properly understood, should. My argument utilizes the interpretivist jurisprudence of Ronald Dworkin. If I am right, the question of who has interpretive authority is just as crucial as the question of how the Constitution should be interpreted. With regard to the second thesis, I argue that judicial supremacy is an inappropriate structural feature in our separation of powers system. Relying on the constitutional theory of German jurist Carl Schmitt, I argue, first, that the Supreme Court has generally proven incapable of serving, at least in times of crisis in which it is arguably most needed, as an efficacious guardian of constitutional norms, and, second, that its attempts to do so have proven disastrous for the legitimacy of the federal judiciary over the past few decades. I conclude with some normative arguments, based on the work of Jeremy Waldron, as to why the judiciary is an inappropriate institutional actor for the application of originalist methodology.
With respect, I think Professor Perkins is wrong as to both of the points he says are "intrinsic" to originalism.
As to the second point, I simply don't understand the claim that originalism depends on judicial supremacy. Originalism is a argument about how the Constitution should be interpreted (or, really, an argument about how legal texts should be interpreted). It isn't specific to judges, at least in most of its forms. If judges are not the final interpreters of a legal text, some other institution must be, and originalism will argue that that institution should use originalism as its interpretive guide. (For what it's worth, a good bit of my foreign affairs scholarship is in areas that courts likely won't decide due to standing, political question and related doctrines, but I don't see why originalism isn't relevant to those areas; people seem to care a lot about the original meaning of the declare war clause even though it's not likely to be decided by a court). Moreover, we actually live in a era of "judicial supremacy" (by Professor Perkins' definition — I think he just means constitutional judicial review). So even if originalism does assume judicial review (which it need not), it's still relevant to the actual real world, if perhaps not to Professor Perkins' preferred world.
On the first point, I've argued here a number of times against this common criticism of originalism so I'll just summarize. Originalism does not assume that all or most legal questions are determinate by originalist methods. The core proposition of originalism is only this: to the extent legal questions are determinate by originalist methods, they should be resolved according to originalist methods. (And "determinate" here does not mean "beyond any reasonable doubt"; it only means by fairly strong evidence). Originalism accepts that not all questions are determinate by originalist methods, although it's divided on how then to proceed: (a) one might say that when originalism can't clearly answer a question, one must resort to other methods in the so-called "construction zone" (the position of, for example, Larry Solum, Randy Barnett, Jack Balkin and Keith Whittington); (b) one might say that judges therefore lack authority to rule, and so the decision is left to the political branches to decide politically (the position of, for example, John McGinnis and Richard Kay); or (c) one might say that the interpreter must nonetheless make the best assessment under the circumstances of the originalist rule, even if subject to some doubt (I think this is Mike Rappaport's position). But in any event it's just not true that originalism assumes near-complete determinacy.
Originalism does claim that it is more determinate than competing theories of interpretation. And as a practical matter, to be relevant, originalism must claim that it is determinate in at least some non-trivial number of contested cases. But I think these are pretty easy claims to make.
Posted at 6:36 AM