At Liberty Law Forum, Stephen Sachs (Duke): Saving Originalism’s Soul (commenting on Steve Smith's essay Meanings or Decisions? Getting Originalism Back on Track). From the introduction:
What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that made “That Old-Time Originalism” great.
To Smith, the new originalism lacks any claim to the Framers’ authority. Because it looks to the meanings of the Framers’ words, and not to their substantive expectations, it can be made by skilled sophists to justify things “the enactors wouldn’t have approved—would perhaps have deplored,” like rights to abortion or to same-sex marriage. If the Framers had foreseen such consequences, their Constitution “would have been reworded to avoid the unwanted results, or would not have been enacted at all.” That makes the new originalism irrational, a product (at best) of the Framers’ “ignorance” and lack of foresight, not their “mindful deliberation.” Instead, Smith counsels a return to the “original decision,” which (he argues) rules out any deplorable consequences that the Framers would have opposed.
And in conclusion:
The soul of originalism is a method, not a collection of results. The theory is aimed at getting the law right, not at advancing any particular political platform. It rules nothing out in advance, looking to what the law and history actually reveal. This openness to potential surprises is a strength, not a weakness: it shows that the theory is robust—that it can handle a variety of different kinds of evidence.
That flexibility, it’s true, raises a risk of manipulation. Smith not-so-subtly accuses Balkin, Michael Perry, and even Robert Bork of bending the historical record to support their preferences. But he writes as if such manipulation were largely unstoppable—as if only a fundamental change in interpretive method could build a firewall strong enough to resist it. It’d be far simpler, though, to argue that the manipulators are wrong: that they misunderstand what the Framers did and what results follow therefrom. Is that not enough? And if they aren’t wrong, shouldn’t that lead Smith to reexamine his own views?
Like anything else, the new originalism can be done poorly, or even fraudulently. That doesn’t mean that we should stop doing it—any more than “junk science” should lead us to ban science, or motivated reasoning should lead us to abandon reason. Not every bargain is a Faustian one; some trade-offs really are worthwhile. In each case, we do what we can with the tools that we have. And in the end, as G.K. Chesterton put it, “if a thing is worth doing, it is worth doing badly.”
At Balkinization, Jack Balkin comments (at length, and with characteristic depth and insight) on the Smith essay and the responses from Sachs as well as those (noted here earlier) from Mike Rappaport and Will Baude.
Posted at 6:08 AM