If "It Takes a Theory to Beat a Theory," Originalism Loses

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Justice Antonin Scalia, who died 10 years ago this month, was fond of saying over and over again that “it takes a theory to beat a theory.” He often made this claim when people criticized originalism. Scalia’s point was that originalism skeptics did not have an alternative theory that was more persuasive.

Recently, Professor Josh Blackman repeated this trope, suggesting that neither the political left nor the American Constitution Society (ACS) have come up with an interpretive theory more persuasive than originalism. Professor Blackman argues that all the left and ACS can show for their efforts fighting originalism is anti-Trumpism and anti-conservatism but no positive theory of constitutional interpretation.

This argument was ridiculous when Scalia repeatedly yelled it at his many audiences prior to his death, and it is even more ridiculous today when Professor Blackman tries to give it new life. The reality is that originalism is not a theory of constitutional interpretation that gives judges meaningful guidance how to decide constitutional law cases or constrains judges in any way. And it is equally untrue that the left does not have a theory to counter originalism. Scalia’s and Blackman’s arguments are completely unpersuasive.

Let's begin with Scalia's and Blackman's claim that the left has no meaningful theory of constitutional interpretation that could compete with originalism. For decades, the left has detailed a theory of pluralistic constitutional interpretation that is more persuasive a theory of constitutional interpretation than originalism. This theory, embraced by scholars such as Phillip Bobbit, Larry Tribe, Jack Balkin, Reva Siegel, Mike, and many others, argues that when deciding constitutional law cases judges should look at text, history, tradition, precedent, and consequences. Neither the left generally nor ACS specifically believe that judges should just “make stuff up,” or use their own values, but rather judges should engage in the type of common law method that Professor David Strauss has so well described and that has been part of our law since well before the Founding.

Moreover, as we shall see, one of the great benefits of this theory of constitutional interpretation is that it is a much more accurate description of what judges actually do and have done for over two centuries than originalism. But the main problem with the trope that it takes a theory to beat a theory in the context of comparing originalism with other methods of interpretation is that originalism is not close to a single theory of constitutional interpretation. 

As I've detailed before, among judges and law professors who self-identify as "originalists," there is no longer a serious metric or common definition to understand how they would approach hard constitutional cases. Originalism is much more of a political identification than a theory of constitutional interpretation.

Some originalists today believe that judicial review must be exercised by judges with strong deference to the decisions of non-judicial political actors. Professor Miichael Paulsen has said the following:

Where vague or general language admits a range of meaning, actions of representative government falling within that range cannot be said to be unconstitutional. Ambiguity does not supply a justification for courts picking any answer they prefer. Just the reverse: The less clearly the Constitution addresses any issue, the less the justification for judicial invalidation of what elected branches have done. The more unspecific a text, the more room it leaves for democratic choice. This is a feature, not a failure, of Originalism.

But other originalists today, such as Professor Randy Barnett, have severed the link between originalism and judicial deference:

Instead of “judicial conservatism,” which admonishes judges to put their thumbs on the scale to uphold laws, we favor 'constitutional conservatism' in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation…. Those who reject implementing [imprecise] provisions because these clauses don’t meet their standards of specificity would disregard the written Constitution in the name of their own conception of 'the rule of law,' just as surely as others reject the written Constitution because it does not comport with their own conception of 'social justice.'  Both positions should be rejected by constitutional conservatives.

Most originalists today believe that the essential task for judges is to determine the original meaning of the text at issue. But a healthy minority think the search should be for the original intent of the people who wrote and ratified the relevant text. Still others think those are essentially the same questions because the best proof of original meaning is the intentions of the people who wrote and ratified the text.

Professors Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, stated in an essay for a Northwestern University Law Review symposium that "the debate over original intent and original public meaning has launched scores of law review articles." Yes.

Professor Larry Solum has detailed the varying views among originalists about what evidence should count and what judges should be looking for:

Public Meaning: The original meaning is the public meaning of the constitutional text.

Framers’ Intentions: The original meaning is provided by the framer’s intentions. Intentionalism has further variants, including forms that focus on purposive intentions and communicative intentions.

Ratifiers’ Understandings: The original meaning is given by the understandings of the ratifiers of each provision.

Original Methods: The original meaning is the meaning that would be given to the text by the original methods of constitutional interpretation and construction.

Original Law: Contemporary law is derived from the original positive law, including the rules of constitutional change authorized by that law.

The answers to many constitutional cases will, of course, vary dramatically depending on which evidence judges believe they are looking for, and there are competing and at times conflicting suggestions as to how to answer that question but no single theory.

Some originalists, such as Professors Will Baude and Steve Sachs, think originalism is already our law. Many other originalists, however, such as Barnett and Paulsen, argue that their own brands of originalism (which are vastly different from each other) are mostly normative, not descriptive. Originalist Professor Mike Ramsey has said the following:

Until recently originalism theory was mostly normative, and it still generally is, but the 'positive turn' in originalism theory led by scholars such Professor[s] Baude and ... Sachs have sought to reinvent it to some extent as a descriptive enterprise.... Professor Barnett's scholarship is clearly normative.

I could go on and on but these questions demonstrate without a doubt that originalism is not a theory of constitutional interpretation but a family of different approaches that can lead judges to virtually any result in constitutional cases. Originalists disagree strongly on how much deference judges should give other political actors, what is the relevant evidence judges should use when acting as originalists, and even over whether originalism is an accurate description of prior judicial practices or a normative theory that has not yet been adequately adopted by the federal judiciary.

Originalists also strongly disagree on the extremely important and often determinative question of when originalist judges should defer to non-originalist precedent.

As a descriptive matter, there is no reasonable argument that the Roberts Court uses originalism to decide cases. I’ve made this argument many times before so will just sum it up here.

The Court’s First Amendment jurisprudence has departed over and over again from the amendment’s original meaning which was limited mostly to addressing prior restraints and licensing fees to publish speech. The originalists on the Court have never explained how they can consistently overturn state and federal laws punishing speech after it is uttered because such cases (many of which I favor) are inconsistent with everything we know about what the First Amendment meant in 1791 or even in 1868 when the Fourteenth Amendment, which was eventually held to incorporate most of the Bill of Rights against the states, was adopted.

The Roberts Court’s three recent Free Exercise clause cases requiring states to fund private religious education if they fund private secular education has no basis in that clause’s original meaning, and the justices did not even try to use founding era or 1868 sources to justify those cases.

The Roberts Court’s recent adoption of “color-blindness” in SFFA v. Harvard has no footing in the original meaning or intent of the Fourteenth Amendment, and only Justice Thomas’s screed of a concurring opinion relied on history to support the rule. The fact that no other justice signed on to that opinion is quite telling.

As Professors Julian Mortenson and Nick Bagley have persuasively demonstrated, the Court’s recent separation of powers cases requiring that Congress act with specificity when delegating power to the President is in complete opposition to how the Founding Fathers thought and acted on issues of delegation. In the cases where the Roberts Court has employed the major question doctrine, there is little if any reliance on originalist sources. In West Virginia v. EPA, where the major question doctrine played a major role, there is no discussion of originalism at all.

I could discuss many other Roberts Court cases where originalism played no role, and I do so in a soon to be published article on how the Roberts Court, yes the Roberts Court, has actually killed originalism.

The pluralistic theory of constitutional interpretation describes our law more accurately than originalism as even many, if not most, originalist scholars concede. The bottom line is that originalism is not a “theory” of constitutional interpretation that helps judges decide difficult and important constitutional law cases but rather an identifier which some conservative and libertarian scholars and judges use to advance their careers (to be clear there are of course exceptions to this, such as Professor Ramsey). If it takes a theory to beat a theory, originalism is the biggest loser.

-- Eric Segall