A while back Professor Buckley published the essay We Can Do Better Than the Framers’ Constitution at Law & Liberty. There are now two responses at that site:
Roger Pilon: We Can Do Worse Than the Framers’ Constitution. From the core of the argument:
… Buckley writes that originalism’s “plausibility as a rule that deserves to be followed rests on a rejection of its principal alternative—the left-liberal egalitarianism and libertarianism that informs much of our constitutional law.”
Not so. In fact, the premise on which originalism rests is straightforward and simple: judges should follow originalist principles—they should interpret and apply the law as written—because otherwise they’re not applying law, but something else, like their own “corrections” of the law. Thus when Buckley goes on to write that “originalism is necessarily a political creed that seeks to hide its politics,” he’s got it rather backwards. It’s a legal creed that makes no effort to hide—or reveal—any politics, including the politics that brought the law into being. Again, it aims simply to read and apply that law as written. And that is true whether judges are applying the American, the Canadian, or the old Soviet constitutions.
Buckley’s confusion rests, then, not with his contention that originalism is a form of legal positivism. He’s right on that. It is such a form, for originalism takes it as given that the duty of a judge is to apply the law to the case at hand. But to do that he must determine what the law is, as distinct from what it might or should be; and to do that he must read the words of that law consistent with their original public meaning. Otherwise, again, he’s not applying the law or fulfilling his duty as a judge. If the result of applying the law as written and properly read is morally unsatisfying, then change the law. But that’s for a lawgiver to do, not for a judge. Buckley would have the judge be a legislator. That is the end of the rule of law.
This is similar to what I wrote, much less eloquently, in response to Buckley here.
James Rogers: The Honesty of Originalism. From the introduction:
The central case for legal originalism is commonsensical and compelling: Read legal texts as we read everything else—honestly. Think of it as an application of the Golden Rule: Read others as you would like to be read yourself, including legal texts. And if you don’t like what you read in a legal text when you’ve read it honestly, the solution is not then to read the text dishonestly, the solution is to advocate changing the legal text.
So, contra F.H. Buckley, it is not the case that “if originalism commends itself, then, it must be because the Framers’ Constitution is morally superior to that of today’s Constitution.” You don’t read the letter from Aunt Jenny honestly only if what she wrote is morally superior to anything else she might have written. You read it honestly and then disagree with her if you find what she’s written to be morally wanting. (We might even advocate to Aunt Jenny that she amend her letter: “That’s not true; you take that back!”)
And, contra Adrian Vermeule, reading texts honestly—including legal texts—is not a “political and rhetorical” strategy based on fleeting political “utility.” If one doesn’t believe that the current Constitution promotes society’s “common good” if read honestly, then propose a different constitution that would achieve the common good as one sees it, and we can debate the proposal. But don’t advocate reading the current Constitution dishonestly to achieve purposes any honest reader would admit the text doesn’t support.
Both ignore that the central attraction for originalism is a moral attraction—that it simply commends reading legal texts honestly.
The real problem for both left- and right-antioriginalists is that the U.S. Constitution is difficult to amend without a fair degree of consensus that it should be changed. So people who want to change the Constitution seek easier routes by which they might change the meaning of the Constitution without wasting their time advocating for a constitutional amendment.
Posted at 6:00 AM