Candid originalists acknowledge that originalism can't give a clear answer to every case. One that seems especially difficult: last week's Supreme Court decision in Walker v. Sons of Confederate Veterans. The question is whether Texas can offer its citizens the opportunity (for a fee) to design their own license plates, but reserve the ability to veto designs it finds offensive (in this case, a design incorporating the confederate flag). Justice Breyer's answer ("yes," for a 5-4 Court) has come in for some sharp criticism from across the political spectrum — see here from Josh Blackman ["not only wrong, but dangerous"]; here from Michael Dorf ["so badly reasoned that it cannot be taken seriously"]; here from Ed Whelan ["Justice Alito's dissent strikes me as devastating"]; here from Calvin Massey ["The Court got it badly wrong."]).
I doubt originalism has anything useful to say on this issue. Textually, the question is whether this restriction "abridg[es] the freedom of speech." But how to assess that? I can't think of any practice in the eighteenth or nineteenth century that's reasonably analogous. That being so, I can't see how to answer the textual question. We can't make any progress without knowing whether analogous practices were understood to violate the freedom of speech. The question (from an originalist standpoint) isn't whether the practice abridges the freedom of speech in the abstract, but whether it abridges the eighteenth/nineteenth century meaning of freedom of speech. And if there's no analogous historical practice, there's no way to assess that question.
A couple of options are then available. We could say that this is a situation in which the original meaning "runs out" and leaves us in the "construction zone" where (apparently) judges create their own answers. (And if that's the case, I'm not sure on what basis we can criticize judges for picking one result where we would have picked another).
Or we could impose a default rule. For example, we could say (as I assume John McGinnis would say) that since the government action is not clearly contrary to a constitutional rule, it should be upheld. But also, perhaps we could say that, since the First Amendment protects speech and the Texas rule appears to limit speech, the Texas rule should be invalid unless Texas can show it's allowed by the Constitution's original meaning (which Texas can't). Thus we would face the question of how to pick among default rules.
John McGinnis would further say, I think, that originalism provides the default rule, because the presumption of constitutionality was part of the way people understood the courts' judicial power at the time. Perhaps that's right, but it depends on proof of a common understanding that may not be possible. And if the common understanding on this point is ambiguous or not fully developed, then what? We would need a default rule for picking the default rule.
I don't think any of this amounts to an argument against originalism. A common argument against originalism is that it can't give a clear answer to every question. The response is, of course it can't. That's not an argument against using originalism where it does give an answer. But I'm inclined to think Walker is a case where it doesn't (and one may as well admit it).
Posted at 6:21 AM