A rhetorical question (and faint-hearted originalism)

Tue Aug 21 12:17:43 PDT 2007

I think I agree with all of what Larry Rosenthal writes here, but for
uncertainty regarding what he takes nonoriginalism to be, as when he
attributes to me the question:  "if one starts heading down a pragmatic
path, why not go all the way to nonoriginalism?"

If nonoriginalism is merely the denial of originalism (as I believe it
is), and if originalism is a theory that requires fidelity to the
original meaning (as I also believe it is), then to license any
departure from original meaning is already to endorse nonoriginalism,
and the question becomes: Where should we pull up *within*
nonoriginalism land?   

If you think this is just a little too cute, or is a debater's point,
I'd ask what is thought to be captured by the offered contrast between
Scalian "one-exception originalism" (as I like to call it) and what
Professor Rosenthal calls a "fully nonoriginalist jurisprudence."  Is
the latter supposed to be a theory that accords no respect to original
meaning?  If so, then I submit that it has zero adherents.  (Virtually?)
all self-professed nonoriginalists take original meaning seriously.  The
questions that divide theorists are "how seriously" and what sorts of
considerations can override or displace original meaning.  And if that's
so, then I ask whether the place that Scalia (and perhaps Bork) chooses
to rest within nonoriginalist territory can be defended against other
proposed resting spots with anything stronger than necessarily
contingent and contestable pragmatic judgments.  It's pretty clear, I
think, that Scalia and most other self-described originalists who'd
grant an exception for stare decisis do not acknowledge that this is the
state of play between themselves and their opponents.

Mitch Berman
The University of Texas

-----Original Message-----
From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu] 
Sent: Tuesday, August 21, 2007 1:19 PM
To: Mitch Berman; Ilya Somin; Marty Lederman
Cc: Volokh, Eugene; Sanford Levinson; CONLAWPROF at lists.ucla.edu
Subject: RE: A rhetorical question (and faint-hearted originalism)

I certainly agree that one can find nonpragmatic justifications for
originalism in Justice Scalia's writings.  But pragmatism is never very
far away.  Consider this passage from his Taft lecture:  

It seems to me, moreover, that the practical defects of originalism are
defects more appropriate for the task at hand-that is, less likely to
aggravate the most significant weakness of the system of judicial review
and more likely to produce results acceptable to all . . . . [T]he main
danger in judicial interpretation of the Constitution-or, for that
matter, in judicial interpretation of any law-is that the judges will
mistake their own predilections for the law. Avoiding this error is the
hardest part of being a conscientious judge; perhaps no conscientious
judge ever succeeds entirely. Nonoriginalism, which under one or another
formulation invokes "fundamental values" as the touchstone of
constitutionality, plays precisely to this weakness. It is very
difficult for a person to discern a difference between those political
values that he personally thinks most important, and those political
values that are "'fundamental to our society."' . . . . Originalism does
not aggravate the principal weakness of the system, for it establishes a
historical criterion that is conceptually quite separate from the
preferences of the judge himself. And the principal defect of that
approach-that historical research is always difficult and sometimes
inconclusive-will, unlike nonoriginalism, lead to a more moderate rather
than a more extreme result. The inevitable tendency of judges to think
that the law is what they would like it to be will, I have no doubt,
cause most errors in judicial historiography to be made in the direction
of projecting upon the age of 1789 current, modern values-so that as
applied, even as applied in the best of faith, originalism will (as the
historical record shows) end up as something of a compromise. Perhaps
not a bad characteristic for a constitutional theory. 

Thus, if originalism has, at least in part, a pragmatic justifications,
then sufficiently compelling pragmatic considerations may in some cases
justify adherence to nonorigalist precedent or practice.

Now, Mitch Berman is quite right to point out that if one starts heading
down a pragmatic path, why not go all the way to nonoriginalism.  I
think the answer is that deference to settled practices and expectations
provides a more reliable stopping point for judicial power then any
fully nonoriginalist jurisprudence could provide.  Consider Judge Bork's
defense of the Legal Tender cases as decisions validating practices that
"have become so embedded in the life of the nation, so accepted by
society, so fundamental to the private and public expectations of
individuals and institutions, that the result should not be changed now.
This is a judgment addressed to the prudence of a court, but it is not
the less valid for that."  Judge Bork's test at least provides a
stopping point for the exercise of judicial discretion.  And again, if
the justification for originalism is that it cabins judicial discretion,
originalism with a limited exception for deeply rooted reliance
interests still cabins judicial discretion reasonably well.

Larry Rosenthal
Chapman University School of Law

-----Original Message-----
From: Mitch Berman [mailto:MBerman at law.utexas.edu] 
Sent: Tuesday, August 21, 2007 10:13 AM
To: Rosenthal, Lawrence; Ilya Somin; Marty Lederman
Cc: Volokh, Eugene; Sanford Levinson; CONLAWPROF at lists.ucla.edu
Subject: RE: A rhetorical question (and faint-hearted originalism)

I appreciate this reply, but don't think it's quite as easy as that for
the faint-hearted originalists to escape this challenge.

First, whatever might be the true explanatory story, I do not believe
that Scalia advocates originalism on avowedly pragmatic grounds.
Rather, he seems to present it as something like a conceptual entailment
of the principles of democracy and the rule of law.  Consider, for
example, his emphatic reminder, in his reply to Tribe, that "stare
decisis is not part of my originalist philosophy; it is a pragmatic
exception to it."  This would be an odd point to insist upon, it seems
to me, if he understood originalism and stare decisis to stand on the
same pragmatic ground.  Instead, I understand the Scalian picture to be
that, while originalism rests on -- indeed, is demanded by -- certain
sorts of nonpragmatic (principled?) considerations, pragmatic
considerations demand that it be qualified by stare decisis.

Second and more importantly, my suggestion was not that there
necessarily exists a contradiction between originalism and a
pragmatically driven reluctance to displace well-settled precedents (or
practices).  My question was whether there exists a principled basis for
departing from the original understanding for pragmatic reasons *but
only when* those pragmatic reasons are reasons in virtue of well-settled
precedents and practices.  

If we can take the Scalian interpretive theory to be (something like)
"adhere to the original meaning except where the consequences of doing
so, by departing from precedent, would be sufficiently bad," my question
is: What justifies the qualifying clause?  Pragmatism counsels
sensitivity to consequences.  Why should it be so concerned with the
etiology of those consequences, independent of their character and
magnitude? 

Or, to put the point another way, if pragmatism dictates that judges
should say that what is false should be held to be true in the interests
of stability (as Scalia has claimed that it does), why should they not
do the same in the interests of, say, utility or justice or when the
balance of relevant values plainly weigh in favor of the non-originalist
interpretation?  I appreciate that there may be a cost in allowing them
to do so.  But there's also a cost in disallowing them from doing so.
Once Scalia heads down the pragmatic path, what's his argument for
categorically ruling out these other exceptions?

I suspect that the faint-hearted originalist who wants to keep her
pragmatic exceptions at one (judicial precedent) or at two (judicial
precedent plus long-standing non-judicial practices) must put forth a
rule-consequentialist story here.  Has such a story been developed?  Is
it persuasive?  (I'm skeptical.)

Mitch Berman
The University of Texas

-----Original Message-----
From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu] 
Sent: Monday, August 20, 2007 9:13 PM
To: Mitch Berman; Ilya Somin; Marty Lederman
Cc: Volokh, Eugene; Sanford Levinson; CONLAWPROF at lists.ucla.edu
Subject: RE: A rhetorical question (and faint-hearted originalism)

I recall being in the courtroom listening to oral arguments on more than
one occasion during which Justice Scalia began griping that the "fourth
branch" of government was not in his copy of the Constitution, but these
rants, as I recall, usually ended with him saying, "but I suppose it's
too late to do anything about that," or words to that effect.

My own understanding of Justice Scalia's embrace of his "faint-hearted
originalism" is that his advocacy of originalism rests on pragmatic
considerations -- originalism provides, in his view, the best vehicle
for restraining judicial overreaching and therefore to avoid unwarranted
displacement of majoritarian judgments.  If one embraces originalism for
pragmatic reasons, in turn, there is no contradiction between
originalism and a reluctance to displace well settled precedents or
practices upon which substantial reliance has been placed -- if the
result dictated by originalism is sufficiently alarming and disruptive,
then the pragmatic argument for originalism disappears.  I believe that
Robert Bork accepted the constitutionality of paper money on essentially
this ground.

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Mitch Berman
Sent: Sun 8/19/2007 11:43 AM
To: Ilya Somin; Marty Lederman
Cc: Volokh, Eugene; Sanford Levinson; CONLAWPROF at lists.ucla.edu
Subject: RE: A rhetorical question (and faint-hearted originalism)

I'm very interested in Ilya's claim that "faint-hearted" originalists
(like Scalia, but I suppose not limited to him) believe that the
original meaning should not be allowed to displace well-established
"practices and precedents."

My recollection (and I have neither source handy) is that this is a
faithful characterization of the brand of originalism that emerges from
Scalia's 1989 article but that, in A Matter of Interpretation, Scalia
seems to allow an exception to originalism for well-established
*judicial* precedents, but does not intimate that he'd defer to
*non-judicial* precedents (or "practices") in the same way. 

Regardless of whether this is the correct reading of Scalia (and I'd be
grateful for the correction if it isn't), two questions emerge:  First,
is there a principled and ultimately persuasive argument for excepting
judicial precedents -- and judicial precedents alone -- from the reach
of the originalist mandate without also deferring to well-established
non-judicial precedents/practices that depart from the original meaning?
Second, if not, is there a principled and ultimately persuasive argument
for excepting well-established precedents/practices, both judicial and
non-judicial, from the reach of the originalist mandate without allowing
other sorts of consequentialist (or "pragmatic") considerations to
temper originalism? 

Both questions have force, it seems to me, precisely because, as best I
understand it, the arguments for making that very first concession (to
judicial precedents) are themselves pragmatic in nature.  So my
questions are essentially one: what considerations, consistent with the
arguments for originalism in the first place, permit pragmatic
considerations to intrude thus far but no farther?

Mitch Berman
The University of Texas

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ilya Somin
Sent: Saturday, August 18, 2007 1:16 PM
To: Marty Lederman
Cc: Volokh, Eugene; Sanford Levinson; CONLAWPROF at lists.ucla.edu
Subject: Re: A rhetorical question

I for one always mention the Federal Reserve and post-New Deal
independent agencies in class discussions of Morrison and the  unitary
executive. I also point out some of the the reasons why this is unlikely
to be a true "sky is falling" scenario of the sort that I mentioned
earlier on this list.

My impression is that these issues have been a part of the debate over
executive power for a long time and are hardly a secret.

I don't think, however, that the UE necessarily precludes letting
private parties engage in prosecution, so long as executive officials
retain the power to prevent them if they want to.

As for Alito and Scalia, it is hardly unusual for prominent judges and
public figures to not fully trace out the most extreme implications of
their arguments. Liberal judges do this all the time too. Moreover,
Scalia very likely believes that the UE (like other structural
constitutional doctrines) should not be allowed to displace very
well-established practices and precedents, even if they are
unconstitutional as an original matter. This is consistent with his
famous article on "faint-hearted" originalism and his position on
Commerce Clause issues. Personally, I am a lot less supportive of
precedent than Scalia. But his position is not unusual and is hardly
unique to advocates of the unitary executive.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339