Friday, August 25, 2017

How Determinate is Originalism in Practice?

by Michael Dorf

When originalism began gaining traction in the 1970s and 1980s, its proponents frequently cited its supposed constraining impact on judges as a virtue. This claim fit well both with originalism's ideological origins and its nature at the time. Although appeals to the framers were a common trope in judicial rhetoric in prior periods, by the time originalism began to crystalize as an "ism," it was largely a program of resistance against what conservatives saw as the excesses of the Warren Court and, to the extent that the Burger Court built on or failed to cut back on the work of the Warren Court, the Burger Court as well. At the time, originalism was generally promoted as aiming at implementing the framers' intent, which was thought to be reasonably determinate in its concrete applications. E.g., if the framers of the Fourteenth Amendment did not intend (or expect) it to forbid most forms of sex discrimination, then arguments for sex equality under the Fourteenth Amendment were inconsistent with this first wave of originalism.

Partly in response to withering criticism, originalism morphed over time, so that most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text, rather than the concrete intentions and expectations of its framers and ratifiers. And because the original public meaning of the more open-ended clauses of the Constitution tends to be, well, open-ended, original-public-meaning originalism tends to be substantially less determinate than (at least the claims that have been made for) old-style original intent. Originalists solved the problem of seemingly having to support a view of the Constitution that allows official sex discrimination and other unacceptable practices by sacrificing determinacy.

Except that most original-public-meaning originalists cling to determinacy as a virtue. They no longer claim that originalism is close to fully determinate, but they still frequently claim that it is substantially more determinate than other approaches to constitutional interpretation. This claim is empirically testable. If originalism were a methodology that constrained justices, one would expect that a justice who practiced originalism would be somewhat ideologically unpredictable. And yet, as I shall explain, originalism in practice is predictably conservative.

I'll provide evidence for that claim momentarily, but first, I want to address a threshold objection. Perhaps originalism leads to conservative results because that's simply what an honest approach to uncovering the original public meaning requires. This is a prima facie plausible objection in various categories of cases. For example, perhaps the original public meaning of "commerce . . . among the several States" referred only to trade, not other economic activity, which would mean that an originalist justice would be less inclined to uphold federal power than a non-originalist justice. Given that "states' rights" codes as conservative, here honest originalism would have a conservative bent because of the nature of the historical materials, not because of any lack of constraint on the ideological preferences of the academics, judges, and justices who purport to practice originalism.

Moreover, we can expect that originalism leads to conservative results on average, not just in particular cases. That's because originalism is backward looking. Non-originalists will be more inclined to say that changing social attitudes warrant changing constitutional doctrine. And as those attitudes tend (on average over the very long run) to change in the direction of more liberal approaches, the resistance that originalism provides against change will be conservative.

Accordingly, I concede that the objection makes a valid point. Original-public-meaning originalism should lead to conservative results on average, even when practiced by an academic, judge, or justice with no ideological axe to grind.

That said, I still contend that honest originalism should lead to an ideologically mixed record, even if one that is on-average conservative. That is because the expected conservative lean I have just described is small-c conservative--i.e., it will tend towards conserving past attitudes and practices. Some contemporary views that we describe as ideologically conservative (what we might call big-c Conservative), are also small-c conservative, but many aren't. For instance, the contemporary big-c Conservative attack on "political correctness" and the assumption that the antithesis of political correctness finds a home in the First Amendment do not "conserve" any prior understanding of the Constitution. Nor does the contemporary big-c Conservative view of campaign finance law. Nor of the view that the Constitution requires color-blindness. Etc.

Indeed, it would be astounding if an honest effort to unearth the original understanding of various constitutional clauses from the Founding and Reconstruction yielded the contemporary Conservative program--which reflects the peculiar mix of anti-regulatory business interests, social conservatism on gender relations, and white resentment of racial minorities that characterizes the current, highly contingent, Republican Party coalition. One would expect some overlap and even some net positive correlation given that there is some positive correlation between small-c conservatism and big-c Conservatism. But the sheer messiness of history and contemporary politics would mean that an honest originalist voting his or her methodological rather than ideological druthers would end up roughly center-right on average, with a high degree of variance.

Is that what we find when we examine the data? Not even close. When political scientists code for ideological valence of the issues that come before the Supreme Court, they find that the most consistently ideologically conservative justice is Clarence Thomas--who also most consistently espouses and purports to practice originalism. (Justice Gorsuch would likely be his twin but has not been on the Court long enough for a substantial dataset.) Here's a useful chart that I've lifted from a Stanford Business School website:

A great many other studies show pretty much the same pattern: The more consistently a justice espouses and purports to practice originalism, the more ideologically big-c Conservative he votes. That pattern contradicts the proposition that originalism has an on-average conservative lean with a high degree of variance. So what is really happening? The most natural explanation is that originalism might affect the style in which an opinion is written but has no more constraining force on how a justice votes than do other methodologies.

The supposition that original-public-meaning originalism is no more constraining than other methodologies explains why a professed originalist can get away with voting his ideological druthers, but we still don't know why those druthers are conservative--and why the more originalist the methodological druthers of the justice, the more conservative his ideological druthers.

Here's my best guess as to what's going on. Although most adherents of originalism as an academic theory lean conservative, as an academic theory originalism typically purports to be nonideological. Yet in public discourse, originalism is politically freighted. As the research of Jamal Greene, Nate Persily, and Stephen Ansolabehere shows, public attitudes towards originalism are strongly linked to identifiably politically conservative viewpoints. Supreme Court justices apparently endorse originalism for the same reasons that members of the public do: it is a tribal badge of conservatism. Thus, the more conservative the justice, the stronger the identification with originalism.

We now have an explanation for the association of originalism with very big-C Conservative outcomes despite the fact that "genuine" originalism shouldn't have a very big-C Conservative lean. This explanation should leave academic defenders of originalism unhappy, however, because it suggests either that originalism has no constraining force or that if it does, the justices who purport to be originalists are being dishonest or suffer from such severe confirmation bias that they can't get past their ideological druthers.

What's an academic originalist to do? If he thinks that properly applied originalism would be substantially less ideological than the improperly applied--i.e., ideologically very Conservative-- originalism we actually observe in the courts, he could say that there are not now nor have there ever been any "real" originalists on the bench. Even--and in light of the correlation discussed above we might say especially--Justice Thomas would not count as an originalist. Nor would his apparent methodological and ideological reinforcement, Justice Gorsuch.

But that move is highly problematic. It bears an uncomfortable resemblance to what communists in the west used to say when confronted with the murderous and otherwise disastrous record of Soviet and Chinese communism. That's not real communism, they would say, pointing to this or the other difference between Leninism or Maoism and what they regarded as the proper understanding of Marx. And the western communists were right, in a sense: the real-world efforts to build communist states ended up departing in various ways from the orthodoxy prescribed in the theoretical tomes.

However, at some point one must judge a prescriptive theory by the actual real-world results of the efforts to apply it, even if those efforts depart in some ways from the theory. That is why it is fair to pronounce communism a dismal failure.

We may be reaching the point where it is also fair to pronounce originalism--as anything other than a rhetorical smokescreen for extremely Conservative results--a failure. Unfortunately, as a result of Republican control of the presidency and the Senate, we are also in an era when the number of self-proclaimed originalists on the federal bench will increase.


Shag from Brookline said...

Well said. I expect that we'll soon be hearing from Larry Solum at his Legal Theory Blog and from the varied cast of originalists at the Originalism Blog, in apparent lockstep trying to circle the wagons around Mike's post. I like to read between the lines of this post, as perceived by me but not suggesting intended by Mike, a thought from a comment of mine on a recent post by Neil on Charlottesville:

"I would raise the question of contributions to this white Christian supremacy within the legal community since Brown and the civil rights movement, particularly with the originalism and Federalist Society movements; these look back to the 1787 Constitution and its meaning as a matter of faith. To what extent have these movements been fostering the white Christian supremacy of today as witnessed by Charlottesville?"

Query: Is Donald J. Trump the ultimate libertarian?

Joe said...

That chart is depressing regarding how justices are spread out. It's problematic to me that the more leftward part of the line is not represented.

"Except that most original-public-meaning originalists cling to determinacy as a virtue."

Yes. It is not simply that it is seen as the appropriate way to interpret the Constitution. It is supposed to have certain specific values.

I find the whole thing tedious. What if the "original public meaning" (these categories confuse me at some point, so many) is that the text were open-ended provisions that develop over time using the institutions put in place?

This might not be "determinate" in compared to other methods, but aren't we bound by what the Constitution says, not some generalized good policy? And, that is constantly what is appealed to by people who say they are originalists. It is over and over explained that even using their own logic that the results would be different.

Now, there is something there. Exactly how you apply originalism matters there, but the technique does result in different results in close cases, plus a different ethos often enough. There are problems with it in general. But, the whole process, unless it is some yes vague rhetoric process (not quite a "smokescreen," but partially so), it really isn't very popular in a vacuum.

But. interpretation is like that, I guess -- it is a combination of things, so we are left to determine what "originalism" adds to that.

Joe said...

BTW, over at Concurring Opinions Blog an ongoing conversation about the ratification of the ERA is of some relevance -- a hypo is raised on "original understanding" of something that might be ratified over a span of years. A post on the specific issue might be forthcoming. I wonder if any articles discuss this issue in light of the 27A.

Shag from Brookline said...

The Originalism Blog has an 8/23/17 post by Mike (I'm not Rappaport) Ramsey on the Concurring Opinions Blog post Joe referred to commenting on the point with a reference to an amendment (27th?) proposed in the late 18th century and ratified in in the late 20th century that most likely might not be litigated.

Michael C. Dorf said...

Prof. Lawrence Solum has an extensive comment (with the promise of more to come) on this post on Legal Theory Blog: It's well worth reading.

I intend to give Prof. Solumn's response some serious thought and, depending on whether I find that I have anything useful to say in reply, may do so at a future time. For now, I just want to clarify my basic point here: EITHER a) originalism, honestly applied, is less determinate (or constraining or whatever word one wants to use) than its academic champions claim OR b) originalism, honestly applied, is as determinate/constraining as its academic champions claim but, for reasons left unexplored, its judicial practitioners don't apply it honestly. Note that if a) is true, originalism still might be more determinate/constraining than various of its rivals. That might count as a virtue of originalism relative to various rivals, depending on how much weight one placed on determinacy/constraint and other values. If b) is true, then it is indeed open to originalists to argue that we have too small a sample of originalist judges to reach any general conclusions (n=2), as Solum suggests. But if so, that goes to the weight of the evidence, not its direction.

As for the empirical question whether there is a correlation between conservative votes and originalist rhetoric by a judge or justice, I would be very surprised if there were not. One doesn't really need a pile of regressions to know that the most originalist judges and justices are also the most (big C) conservative. That said, of course I would be happy to reevaluate any or all of these views based on further evidence or argument. I look forward to reading Prof. Solum's follow-up essays.

Shag from Brookline said...

I haven't checked the Originalism Blog this mornings as yet to see if there is "coordinated" wagon circling around Mike and this post. There are many varieties of originalism, which continues to evolve, so I expect the "long-knives" of originalists to be bared. Hopefully, some critics of originalism while join in Mike's "circle."

By the way, this in the closing paragraph of Mike's comment @ 11:53 PM:

"One doesn't really need a pile of regressions to know that the most originalist judges and justices are also the most (big C) conservative."

needs no reading between the lines.

Joe said...

"As I mentioned at the outset, this post does not directly engage Dorf's main points. Rather, my aim has been to clarify the nature of the issues."

Might best be for theorists.

Shag from Brookline said...

Here's the quote of the entire paragraph that starts with the quote that Joe provided:

"As I mentioned at the outset, this post does not directly engage Dorf's main points. Rather, my aim has been to clarify the nature of the issues. Over the course of the next few days, I will offer comments that are directed squarely at the substance of Dorf's helpful and illuminating remarks."

Larry Solum has followed up with a second lengthy post today, which together with his initial lengthy post, may be merely the beginning of a forest of comments that may attempt to overwhelm the trees planted by Mike.

I should note that Solum's Legal Theory Blog does not provide for comments. Might this embody some aspect of originalism theory?

Michael C. Dorf said...

As Shag notes, Prof. Solum has posted part 2 of his response. It's at

I don't think I have much to say about the matters Prof. Solum addresses, so I'll simply: (1) recommend that readers interested in these questions read what Prof. Solum has to say; (2) thank him for engaging with my ideas; and (3) add that I find myself thinking that his second post vindicates my hypothesis that originalists who claim that original meaning is at least moderately determinate (as Prof. Solum so claims, especially in his part two) must disavow the self-described originalists on the Supreme Court as pretenders, for the reasons noted in my post. If an originalist judge were honestly applying a somewhat determinate original meaning, we would expect him to vote contrary to his ideology considerably more frequently than we observe (with appropriate caveats about the limited empirical grounding for what we actually observe in accordance with part one of Prof. Solum's response and my comment in my reply in the comment above).

Michael C. Dorf said...

Prof. Solum has now posted part 3 of his reply. It's at . It points out that the study from which I borrowed a chart uses a small sample and thus is not a reliable basis for inferring much about originalism and how justices vote. However, I thought I made reasonably clear in my post that I was simply borrowing the CHART. I wasn't relying on the underlying study for a point that I think is blindingly obvious to anyone with any familiarity with the Supreme Court over the last quarter century: "The more consistently a justice espouses and purports to practice originalism, the more ideologically big-c Conservative he votes." There is a small sample size problem to which Prof. Solum's part 1 correctly pointed: We have a small sample of professedly originalist justices. And there is a small sample of cases in the study from which I borrowed the chart. But there is no small sample size problem that precludes a confident assessment that the most originalist Justice (Thomas) is the most ideologically conservative and the second most originalist Justice (Scalia) is the second most ideologically conservative. The rest is just a matter of footnotes.

Meanwhile, Prof. Solum notes that we don't really know what an originalist would do because of the constraints of a multi-member body and the force of stare decisis. That's true, but one would think that both of these factors would pull justices to the center, so the fact that the justices at stake nonetheless end up on the right-most side of the spectrum seems like further evidence FOR my hypothesis, not against it.

Prof. Solum has raised a number of important and interesting questions. Further work could lead to surprising insights that might lead me to reevaluate the hypotheses set forth above. But for now, nothing he says in any of his replies changes my bottom line.

Michael C. Dorf said...

We now have Prof. Solum's part 4. Some of it rehashes points he previously made, including continuing to attribute to me the claim that the article from which I said (both in the original post and in my last comment) that I was borrowing a chart is the only evidence for the proposition that the most originalist justices are also the most conservative. Prof. Solum also seems to misunderstand my basic point--which was not that Justices Scalia and Thomas are dishonest, but that originalism did not constrain them very much if at all. My argument was that IF originailsm is constraining it ought to lead to moderately conservative results on average, but because it leads to very conservative results, that means EITHER that practitioners are dishonest or originalism is not very constraining. I titled my post "How Determinate Is Originalism in Practice?" rather than, say "Are Originalists Dishonest?" because I didn't mean to suggest dishonesty. Insofar as Prof. Solum's response is that I've only used two data points, HE is the one who is accusing Justices Scalia and Thomas of dishonesty.

Prof. Solum also points to occasionally liberal results (mostly in First and Fourth Amendment cases) as supposed evidence of constraint on Justices Thomas and Scalia. But--to borrow a move from his part 1--compared to what? Every justice sometimes votes against type, depending on the case and regardless of the methodology. Moreover, as Chris Eisgruber has noted, it is hardly clear that Justice Scalia actually disliked the results to which his First and Fourth Amendment jurisprudence led.

I'll reiterate my appreciation for the serious engagement with my blog post and add, finally, that IT'S JUST A BLOG POST. It does not reflect the entirety of my case against originalism, which can be found in books and articles, including e.g., at: