At Dorf on Law, Michael Dorf: Reinvigorating "Defensive Crouch Liberal Constitutionalism" Part 1: Originalism and Searches. Key passage:
Defensive crouch liberal constitutionalism is not a trick or a ruse. It is not an effort to fool conservative justices into voting for liberal results that they actually disfavor. The justices and their clerks are much too smart for that to work. Rather, the basic idea–and it is one with which every sophisticated liberal cause lawyer now working is familiar–is to make a genuine appeal to conservative justices based on conservative values. It can sometimes work because, as Charles Fried's recent essay on the Harvard Law Review blog underscores, much of what we now code as "liberal" can also be understood to be conservative, especially when one counts adherence to precedent as manifesting Burkean conservatism (as Fried does).
Where else can liberals turn conservative arguments to our own ends? I have been, and continue to be, highly skeptical of the arguments for constitutional originalism, but I acknowledge that originalist arguments can be made for liberal no less than conservative results. That is especially true of public-meaning originalism as opposed to expected-applications originalism. Although I have argued that conservative judges and justices frequently use originalist rhetoric to cloak decisions reached on ideological grounds, I do not think that they typically do so consciously. That is, I don't think a conservative justice asks himself "I'd like to vote for the government here, so how can I concoct an originalist argument for that result?" Rather, he tries in what he regards as good faith to read the constitutional text and historical record, but because those sources are typically not decisive, he is influenced by his priors. Still, good faith at the conscious level creates an opening for originalist arguments for liberal results.
Agreed, and as I've argued here before, I think it's critical — if originalists wants to expand originalism's role in the legal culture — for originalism to broaden its appeal and produce some results that the political left favors. Justice Scalia's Fourth and Sixth Amendment opinions are excellent examples. The fact that Professor Dorf, one of the nation's leading originalism skeptics, is pursuing this idea seems very important for the future of originalism.
(At the same time, isn't there something a little troubling about his post? The assumption seems to be that liberal results are the ultimate goal and whatever tool works best to get there is the one to use. Of course this is the way practicing lawyers should think, but is it the right posture for scholars? I would think that constitutional theorists should have a view about interpretive methodology that's independent of how effective it's likely to be as argument to any particular judge or set of judges. Otherwise, there seems to be an implication that liberal constitutional theory is ultimately just about liberal results.)
Posted at 6:02 AM