By Eric Segall
Last week on the Law & Liberty blog, Professor John McGinnis, a well-known academic originalist and libertarian, reviewed Professor Adrian Vermeule's new book "Common Good Constitutionalism." Vermeule's anti-originalist writings have been upsetting originalists for some time now and for good reason. His critiques of originalism are as persuasive and compelling as his program for what he deems to be the "common good" is disturbing. But we can learn a lot about the fallacies of originalism through a serious examination of McGinnis's futile attempts to critique Vermeule's book.
McGinnis begins by saying Vermeule's attacks on originalism are unlikely to succeed because "the originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists."
The Supreme Court does have a majority of Justices who self-identify as originalists but that is simply not the same as saying they decide cases like originalists. The examples of anti-originalist behavior on the Court could fill a book but here are a few key ones:
1) There is no serious originalist basis for strict scrutiny of affirmative action;
2) There is no serious originalist basis for most free speech doctrine;
3) There is no serious originalist basis for applying heightened scrutiny of sex/gender discrimination (though there may be a textualist one);
4) There is no serious originalist basis for strong judicial oversight of the delegation power; and
5) There is no serious originalist basis for strong judicial review across all constitutional issues.
I believe all of the self-identifying conservative originalists on the Court adopt all five of the postures above despite their inconsistency with originalist materials. It is so very easy to self-identify as an originalist, while it is almost impossible to decide most constitutional cases using originalism as a dominant philosophy. That disconnect is one of the great legal fallacies of our time, and McGinnis does not address it.
McGinnis argues that common good constitutionalism and originalism could go hand and in hand. He says that originalism "does not necessarily contest the claim that the Constitution aims at the good. Instead, it contends that the constitutional interpreter advances the common good by following the public meaning of the Constitution at the time of enactment, thus indirectly rather than directly pursuing the common good."
McGinnis, of course, does not explain how following the original meaning of words ratified in 1789 or 1868 by white men through a process that overtly excluded people of color and women could possibly lead to the common good for all. In previous writings, McGinnis has suggested that those defects have been cured by the Reconstruction Amendments but, of course, women and people of color were excluded from that process as well. Another major fallacy of originalism is the failure of self-identifying originalists to deal seriously with this exclusion problem.
McGinnis criticizes Vermeule (and Ronald Dworkin) for believing that moral judgments must of necessity inform constitutional interpretation because "giving free rein to popular decision making in the constitution-making process is more likely to arrive at the common good than permitting judicial discretion in the constitutional interpretive process." This claim is an empirical one that is highly contestable and which McGinnis does not defend. More importantly, the notion that today's public meaning originalism constrains judicial decision-making at all is another fallacy. Originalism combined with strong deference could constrain judicial discretion, but no Supreme Court Justice and very few academic originalists believe in such deference.
For example, McGinnis's frequent co-author Michael Rappaport has argued that if a judge believes by the smallest of margins ("51-49") that a statute is inconsistent with the Constitution's original meaning, the judge should rule the law unconstitutional. I do not know what being 51-49 percent sure means but I am quite confident that whatever it means it is the opposite of deference and would lead to as much or more judicial discretion as the theories advanced by Vermeule or Dworkin.
Similarly, the originalist methodologies favored by Professor Randy Barnett, with a fairly large "construction zone" informed by Barnett's libertarian values, provide judges enormous flexibility to inject their own values into the law. The idea that originalism without strong deference somehow constrains judges is yet another fallacy.
At the end of his review. McGinnis says the following:
If, as I suspect, specific natural law principles were not used to supplant text, but to help eliminate ambiguities and reduce vagueness, their introduction to interpretive debates may prove to be an alternative background principle to some other readings of the Constitution, like the presumption of liberty offered by the libertarian Randy Barnett. That contestation will be all to the good, because originalism is most likely to capture the public meaning of the Constitution when people of diverse ideological priors confront and debate the empirical reality of historical evidence.
This paragraph contains another fallacy about originalism--that there is an "empirical reality of historical evidence." First, few real historians would talk about "empirical reality" on most contested legal issues. Second, most originalists today reject the idea that the expected applications of constitutional text by the people at the time are binding today (this is how originalists defend heightened scrutiny of sex/gender discrimination). But once we discard or minimize expected applications by the people who wrote and ratified constitutional text, what is left of the idea of the "empirical reality of historical evidence?" The answer is modern-day judicial value judgments masked by flimsy and unpersuasive cherry-picked historical accounts. That lack of transparency cannot possibly lead to the "common good" no matter how one defines that term.
Finally, McGinnis' claim that natural law principles might be useful to "help eliminate ambiguities and reduce vagueness" in constitutional interpretation is not only wrong but inconsistent with the rest of McGinnis's critique of Vermeule and Dworkin. After all, what is natural law but subjective assessments of the common good? By definition, judicial injection of natural law principles into constitutional interpretation will lead to exactly the type of morality-based decision-making that McGinnis and most other originalists routinely criticize.
Vermeule and Dworkin both argue that there simply must be a strong moral component to constitutional interpretation by judges, though they of course reach very different conclusions on what that moral component should be. It is a sad commentary on the legal profession that there are still many legal scholars and judges who believe that hard constitutional cases can be resolved without reliance on moral values.
A definition of the word "judge" from the year 1200 is to "form an opinion about." Opinions are of course just that and cannot be right or wrong in any real sense though they can be less or more persuasive. Litigated constitutional law is now and has always been about opinions, values, and preferences not "the empirical reality of historical evidence." The acceptance of that truth by judges and legal scholars would be far more useful to the common good than the continued advancement of flawed originalist theories and the numerous fallacies such theories must by their very nature inevitably embrace.
I feel obligated to add a few words about Vermeule's specific brand of "common good constitutionalism." He has made it clear that, in addition to rejecting Roe and Casey, and the delegation doctrine, a particular object of his scorn is Obergefell v. Hodges. I don't understand him to be saying just that Obergefell is wrong as a matter of constitutional doctrine but rather it is not in the common good to extend marriage to same-sex couples. I confess I do not understand how folks of faith who presumably believe we are all God's children could deny to gay and lesbian adults the same privileges and benefits they would give to heterosexual couples. I might be wrong about the source of his criticism, and if so, he can tell me. But until then, I will remain sad that someone who is so adept at completely demolishing originalism in all its forms does not believe that all people deserve the equal protection of the laws.