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Sunstein: Spurn siren call of constitutional originalism

First Published Feb 04 2014 10:58 am • Last Updated Feb 04 2014 10:58 am

"Originalism" is an influential theory of constitutional interpretation. In the 1960s, Supreme Court Justice Hugo Black, a prominent liberal, marched proudly under the originalist banner. In the modern era, originalism is championed by Justices Antonin Scalia and Clarence Thomas, the court’s most conservative members.

In its least attractive form, practiced by politicians rather than judges, originalism is ideological posturing with a constitutional veneer — a naive or cynical way of attributing the views of the current political right to the Constitution’s ratifiers. But for all those who seek to restrain judicial power, originalism should be attractive. At the same time, the approach runs into some serious problems.

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Originalists insist that the meaning of the Constitution is settled by the original public meaning of its terms — that is, the meaning of its provisions when they were ratified. According to Scalia and Thomas, the job of the judges is to go into a kind of time machine and learn what history tells them about the "expected applications" of these provisions.

If the Equal Protection Clause was originally understood to allow sex discrimination, the Constitution allows sex discrimination. If the First Amendment was originally understood to allow regulation of commercial advertising, it allows regulation of commercial advertising.

The strongest defenders of originalism recognize that their method has to be defended, not simply asserted. This is important, because it is tempting to think that originalism is built into the very idea of interpretation. That’s a mistake.

True, you can’t ignore the words of the Constitution while claiming to interpret it. But you can be faithful to the Constitution’s text while also believing that its meaning isn’t fixed by the original understanding (and the "expected applications"). You can fully respect the text of the Equal Protection Clause while concluding that the clause bans sex discrimination even if the original understanding was otherwise.

Originalists contend that their approach is best because it reduces the discretion of judges, stabilizes the legal system, and ensures that the Constitution’s meaning is settled by the judgments of We the People, who ratified its provisions. Scalia argues that originalists help to produce a "rock-solid, unchanging" Constitution — and that if the document reflects the views of people long dead, well, that’s fine, because those who are living are always free to amend it.

It seems like an appealing argument, but it faces three objections. The first is historical. Did those who ratified the Constitution embrace originalism? If not, originalism turns out to be self-contradictory, because the original understanding rejected originalism as Scalia and Thomas understand it.

The Constitution contains broad and abstract terms, such as "equal protection of the laws," "freedom of speech" and "cruel and unusual punishment." It is reasonable to object that We the People didn’t understand the meaning of such provisions to be frozen for all time. Some originalists have tried to meet that objection, by pointing to history that seems to support their view, but it isn’t a simple task. And, in fact, other self-described originalists insist that because the Constitution deliberately uses broad terms, originalist judges legitimately understand the meanings of those terms to change over time.

The second objection has to do with changed circumstances. In prohibiting unreasonable searches and seizures, the ratifiers of the Fourth Amendment couldn’t have anticipated wiretapping, much less the Internet. But it would be absurd to think that the government has unlimited power to tap our phones and monitor our emails.

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Whenever circumstances change, originalists have to engage in some extrapolation, asking how the original understanding applies to problems on which We the People had no view. When they engage in that extrapolation, they aren’t asking a purely historical question, but instead about the best or most appropriate understanding of a constitutional principle in an unanticipated context - the very question that originalists want to avoid.

The final objection, and perhaps the most fundamental, involves the consequences. If we accepted Scalia’s version of originalism, much of the U.S. constitutional system would be deeply unsettled, and in a way that would trouble liberals and conservatives alike.

It’s pretty clear that under the original understanding, states could discriminate on the basis of sex, and there’s a strong argument that they could engage in racial segregation. It’s even clearer that the federal government could freely discriminate on the basis of both sex and race.

There’s also a good argument that our property rights would be far less secure, because history suggests that the founding generation might well have had a pretty narrow understanding of such rights.

Alert to these problems, Scalia has sometimes embraced "faint-hearted" originalism, an approach that is willing to accept settled law, even when it defies the original understanding. That’s to his credit. But if an originalist is genuinely faint-hearted, should he count as an originalist at all?

In its most attractive form, originalism is a response to legitimate and important concerns, involving the importance of self-government and the risk of judicial overreach. But other methods of interpretation also respond to those concerns - perhaps by asking judges to adopt a presumption in favor of the decisions of the elected branches, perhaps by embracing judicial "minimalism," in the form of modest, narrow rulings.

Originalism is an alluring siren call. Our constitutional tradition has been right to resist it.

Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is a former administrator of the White House Office of Information and Regulatory Affairs, the co-author of "Nudge" and author of "Conspiracy Theories and Other Dangerous Ideas," forthcoming in March.

Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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