Can't We All Just Get Along?

In an extended post on the Volokh Conspiracy, Randy Barnett takes issue with both my account of originalism and my defense of living Constitutionalism. I try to avoid academic esoterica in my blog posts, so I'm not going to give a point-by-point rebuttal here. Instead, I'll use this post to express some skepticism about the utility of the term "originalism" once it is rendered compatible with living Constitutionalism, as Barnett and some others want to render it.

The key move for "compatibilists" (not my term) is to say that a good originalist can leave space for the living Constitution once the original meaning runs out. Barnett gives a nice example: To decide whether thermal imaging is a search for Fourth Amendment purposes, we can't consult the original public meaning of the term "search," because the term had no content with respect to that question in 1791. We are thus in the domain of what Keith Whittington calls "construction," which, unlike "interpretation," permits judges (and other constitutional interpreters) to consult more modern materials. The domain of construction is compatible with the living Constitution, and thus we all seem to get along.

But if that's so, it's hard to see what all the fuss was about. Either the domain of construction is large relative to interpretation, in which case originalism is a largely indeterminate theory, or the domain of construction is small relative to interpretation, in which case a jurisprudence of original understanding would look very different from the living Constitutionalism that we have. And if that's so, then originalism remains susceptible to the criticism that it leads to morally odious results (e.g., the 14th Amendment doesn't forbid most forms of official sex discrimination) or results that would be enormously disruptive of our legal/political order (e.g., much of the federal administrative state is invalid).

I would prefer the first of these reconciliations, which I regard as a near-total surrender by originalism. However, even then, I would have doubts. An originalist who thinks that the domain of construction is large relative to the domain of interpretation still thinks that within the domain of interpretation, the original understanding necessarily prevails. In my view, that's not required. When there is a clear original understanding, that understanding has much to recommend it. But I would not be prepared to say that it is entitled to a conclusive presumption of correctness. Suppose---as Section Two of the Fourteenth Amendment strongly suggests---that we think the original public meaning of the Equal Protection Clause does not forbid blatant, official sex discrimination by the state. (E.g., women can't be lawyers.) As I understand the newfangled (as well as the oldfangled) originalism, this means that the modern sex discrimination cases are simply wrong.

And if originalists are tempted to make an argument that in fact the public meaning of equal protection in 1868 was inconsistent with sex discrimination, then they should feel free to substitute an example that leads to some equally odious result (that is not clearly required by the text as currently read). If the originalist still gamely argues that the original understanding is compatible with modern understandings, that casts doubt on the claim that originalism is really driving interpretation (as opposed to construction).

Posted by Mike Dorf