James Ryan has a very interesting review of two books that critique originalism as a compelling theory of constitutional interpretation available at SSRN (it will be published in the Stanford Law Review soon). One of the books he reviews, Active Liberty, is written by none other than Supreme Court Justice Steven Breyer and it is aimed primarily at Justice Scalia’s brand of originalism. Breyer and Scalia have appeared at forums together essentially debating this subject over the last few years, which I would pay good money to see as I think they are the two finest minds on the court. This book, no doubt, is intended to be a response to Scalia’s 1997 book A Matter of Interpretation.
The other book being reviewed is Radicals in Robes: Why Extreme Right Wing Courts are Wrong for America by liberal law professor Cass Sunstein. Of the two, Ryan appears to prefer Breyer’s book and he says that while offering up good arguments against originalism and compelling examples of where those who claim to be originalists have left their originalism behind in order to reach a desired result, neither of them offers up a coherent alternative to originalism as the correct theory of interpretation. But I suspect that, in fact, neither of them would consider that a weakness; indeed, I suspect both would argue that there is no single true method of interpretation.
I’m going to quote a fairly long excerpt from Ryan’s review below the fold, dealing primarily with Scalia’s inconsistencies in regard to originalism and then draw some parallels between conservative judicial positions and conservative religious positions.
There are some obvious difficulties with Scalia’s originalism as a theory, which both Professor Sunstein and Justice Breyer address. Before turning to those difficulties, however, it is worth considering a question that only Professor Sunstein raises: to what extent do so-called “originalists” or “fundamentalists” actually follow their avowed
methodology? The question may at first seem like a cheap shot – a game of “gotcha” designed to expose inconsistencies that undoubtedly plague all jurists, not just self-proclaimed originalists. Putting aside the fact that some originalists like Scalia invite this line of inquiry by their unrelenting attack on nonoriginalists as unprincipled, the question is actually an important one. It not only sheds light on the sincerity of some originalists, but also on the degree to which we can trust their use of history. If it turns out, for example, that Justice Scalia only relies on originalism when it plausibly supports a politically conservative outcome, we have reason to be skeptical when he does rely on history, because he has already demonstrated a disposition to be results oriented. Looking more broadly, it might make us skeptical about the entire enterprise of originalism as currently practiced if it turns out that its advocates rely on history only when it plausibly supports politically conservative results…
This still leaves plenty of material for Sunstein. Indeed, in Sunstein’s view, Scalia and Thomas are emblematic of fundamentalists who harbor not a principled but a political agenda. The claim is an exaggerated one, both generally and with regard to Scalia and Thomas, but it is not necessarily false. To begin, fundamentalists do not self-identify as such. Some advocates may push a radically conservative agenda under the banner of originalism, regardless of the match between that agenda and the original meaning of the constitution. But it does not follow, of course, that all who subscribe to originalism are equally radical or politically motivated. Similarly, with regard to Justices Scalia and Thomas, they certainly veer occasionally from originalism, and there does seem to be a coincidence between their abandonment of original meaning and their arrival at a politically conservative result. But the issue is more complicated, because both Scalia and Thomas have endorsed politically liberal results that seem dictated by originalism, and because at least Scalia has indicated that he will sometimes follow precedent rather than original meaning.
That said, Sunstein is surely right to encourage his readers to raise an eyebrow or two at the contemporary correspondence between so-called originalists and those who are politically conservative. As he observes, it would be odd if the original meaning of the Constitution — which, after all, is not easily ascertained with regard to a host of important issues — happened to line up perfectly with the major planks of the Republican Party platform. So why is it that so many conservative Republicans support originalism and so few liberal Democrats do? Doesn’t this correspondence itself suggest that originalism, as currently practiced by conservative lawyers within and outside the Supreme Court, may often be just a smoke screen to justify politically conservative results that its advocates favor? Doesn’t the fact that Scalia, Thomas, and others are willing to abandon originalism when it does not support a politically conservative outcome bolster that suggestion? These are the questions Sunstein wants his readers to ask themselves, and he is right to provoke this inquiry. There does indeed seem to be something fishy going on here, and Sunstein, though certainly not the first, is right to say so.
I would suggest that one possible reason why advocacy of originalism tends to line up with conservative thinking is due to the comparison that Sunstein makes between “originalists” and “fundamentalists”. Constitutional originalism is similar to Biblical fundementalism in that both refer to essentially sacred text whose meaning is fixed in time and does not evolve as man’s knowledge and moral views evolve. In both cases, the text is to be taken in its most literal sense whenever possible and in neither case will the notion that any portion of it no longer serves our needs be tolerated. Psychologically, the reaction to the idea that the world might be more complicated than they consider it to be is quite similar.
The analogy is quite clear between this conservative view of constitutional interpretation and conservative theological views of Biblical interpretation. And in both cases, those views are opposed by more liberal views of interpretation that make many analogous arguments. For instance, just as liberal theologians argue that holding to a literal view of scripture often locks one in to centuries old views that have long been discredited, liberal legal scholars argue that holding to a literal view of the text of the constitution locks us in to the views of a society that still denied women the right to vote and still accepted slavery as normal.
Conservative theologians argue that a non-literalist approach to Biblical exegesis that applies only the broad principles and not the letter of the law opens us up to subjectively picking and choosing which parts we like and which we don’t; conservative legal scholars make much the same argument about constitutional interpretation, that without a firm foundation in the text itself judicial rulings become little more than exercises in judicial lawmaking premised upon their own feelings about what the law ought to say rather than what it actually says.
Likewise, liberal theologians argue that unless one tempers the often-barbaric nature of the Bible’s decrees with an application of the broader principles, like the Golden Rule, we are again stuck trying to make the world like the far harsher and less civilized world that the Biblical writers inhabited. And liberal legal scholars respond by pointing out that such literalism results in unacceptably disturbing results that would be cruel and would return us to a less civilized time.
And as this review points out, both liberal theologians and liberal legal scholars make the argument that their conservative counterparts are not nearly as objective as they pretend to be in applying their sacred texts. In both cases, those who argue for a more literal reading still engage in picking and choosing for themselves which parts to take literally and which not to, and they do so on the same subjective grounds that they accuse their opponents of. As my friend Dan likes to say, everyone is a legal realist, some just refuse to admit it.
Likewise, I think liberal scholars of both the Bible and the Constitution would argue that the conservative literalist view is overly simplistic, that reaching conclusions about these very complex issues of making moral judgements about our relationship to others or equally moral judgements about the limits of what a majority may force a minority to do or not do is far too complicated to be solved merely by the rote application of a short list of rules. The proper solutions to such problems, they argue, is far more likely to come out of an ongoing dialogue than by the simple reference to a set of rules laid down when the dominant views on such matters were formed in ignorance and superstition.
The solution to all of this, in my view, is to look to the original principles of liberty and equality before the law and apply them logically and uniformly in all circumstances rather than looking to the original practices of the founders. The principles they left us are timeless and unassailable, while their compromises and betrayals of those principles have found their way into the dustbin of history for a reason. It is liberal originalism that escapes the traps on both sides, remaining moored to the founding principles without being tied in a hidebound fashion to their own refusal to apply them fairly and equitably.