At Volokh Conspiracy, Will Baude: Reasons for Being an Originalist (with counterpoints from Eric Posner here and here).
Eric Posner sets the question up well with this observation, with which I agree:
Originalism is itself a choice. Proponents of originalism must make arguments on [its] behalf. … [They] must show that it is superior to other methods, presumably by advancing institutional values that everyone or nearly everyone shares. In this respect, originalism is no different from other methods.
Will Baude responds, first by indicating one core reason for being an originalist is that it leads to good results:
Originalism is good, the argument goes, because it constrains judges. OR, originalism is good because it advances a certain form of democratic decisionmaking. OR, originalism is good because, at least under our Constitution, it is faithful to a supermajoritarian process that is systematically likely to produce good results.
He then suggests another approach he calls the "conceptual argument," which he prominently associates with Gary Lawson and my colleague Larry Alexander:
The conceptual argument goes: The Constitution is a text, and interpreting that text means trying to discover the meaning those words have in the relevant interpretive community that spoke and received them. Everybody knows this when it comes to the “easy cases,” (two senators, regular elections, federal law trumps state law) and we shouldn’t let the hard cases confuse us.
I might suggest a third view that is somewhere in between these two (though maybe it is just a version of the first). In brief, originalism promotes the rule of law (that is, in John Adams' aphorism, a "government of laws and not of men"). To produce a rule of law, an authoritative interpreter (judge or political branch official) should have interpretive criteria that are external to the interpreter's own policy views. If the interpreter does not, or does not to a significant extent, then the result is policy-determined, not law-determined. The system is thus a "government of men" — that is, of the interpreters — not a "government of laws."
Originalism (in theory, anyway) supplies the external criteria in the form of a text's original meaning. It's possible that other interpretive approaches also adequately supply external criteria, but I doubt it. Precedent may seem like a viable competing rule-of-law approach, but for the reasons discussed here I think precedent rarely compels outcomes (and when it does, I think rule-of-law originalists are likely to incorporate it into their originalism, precisely for that reason). Most other interpretive theories that envision a substantial role for an interpreter to find actions "unconstitutional" depend — directly or in disguised form — on what result the interpreter thinks best.
It's true that minimalism, restraint and similar theories that sharply limit constitutional review avoid the "government of men" objection. But they fail to uphold another core value: limited government. Without constitutional review there is no non-political check on government's political branches. Originalism is a way to have both limited government and law-based interpretation.
This defense is subject to two objections that require it to be somewhat qualified. First, if the original meaning is unknowable or subject to intractable dispute in most cases, it won't provide a rule of law. Second, if the original meaning is that the text delegates policymaking authority to future interpreters, originalism may actually undermine the rule of law. Thus as to at least some possible texts (highly indeterminate ones and highly delegative ones) originalism does not materially advance the rule of law. But most texts are not like that, or at least not entirely like that. The U.S. Constitution's text, for example, is in my view both reasonably knowable and reasonably fixed in its commands with respect to a wide range of issues (although there may be other issues where it is not). Thus originalism, applied to the U.S. Constitution, is reasonably effective in securing both a rule of law and limited government — and thus is justified by, in Professor Posner's criteria, "advancing institutional values that everyone or nearly everyone shares."
I would add, moreover, that the broad appeal of rule-of-law values explains why many non-originalist arguments (and especially most non-originalist Supreme Court opinions) purport to be based on something other than the interpreters' preferences. One might say that originalism is unsound because we want judges to make policy choices. Indeed, I think the originalism/non-originalism debate should be made on exactly these grounds. But frequently it is not, because (I would say) non-originalism wants to claim it is faithful to rule-of-law values, even when it is not.
Posted at 6:42 AM