After making a first attempt to reply to my challenge concerning conservative originalism and the Loving v Virginia decision, Tom Van Dyke then left a comment at American Creation accusing me of not arguing in “good faith.” Here is what he had to say:
Ed, I’m afraid that my suspicion you might not be proceeding in good faith was confirmed by your reply to Jon over at your blog:
Here is the comment of mine to which he refers:
“I am attempting to demonstrate essentially the same point here using TVD as my foil, that those who argue in favor of conservative originalism don’t really mean it – they only mean it when it leads to results they like. When it leads to results that are clearly unjust they jettison their mode of interpretation and pick and choose among a number of other possibilities. And this is precisely, of course, what they accuse living constitutionalists of doing. Originalism is a convenient stick with which to beat liberal judges but when it leads to heinous results, its advocates immediately engage in special pleading to reach the result they want – just like those liberal judges upon whom they use that stick.”
And his conclusion:
Whatever, Ed. That is not good faith discussion.
My response: I think you have a very strange conception of good faith in an argument. I have a genuinely held position that conservative originalism cannot be maintained consistently without leading to results that even its advocates consider heinous enough that they will abandon their interpretive theory in those cases rather than follow their theory to its logical conclusion. Your comments here provided a perfect opportunity to demonstrate the validity of that argument.
I offered those arguments to you with the opportunity to make your case and show them to be false. What part of that, exactly, is not in good faith? Everyone comes to an argument defending a position they’ve already held and seeking to explain why it is better than the contrary argument. That is hardly evidence of bad faith, it is the way all arguments should proceed.
Frankly, I suspect you have chosen to accuse me of bad faith because you don’t really have a coherent answer to my challenge. Your first attempt at a reply was essentially an attempt to change the subject from originalism to textualism. You did not even attempt to counter the argument — undeniable, in my view — that any of the three forms of conservative originalism, if followed consistently, would lead to a rejection of the Loving decision.
Indeed, you seem to have almost admitted that problem and instead present a quote from Scalia to the effect that originalism has such a flaw but the alternatives do too. As I wrote in response, this is a fair point. But that argument leaves originalism in exactly the same position that its alternatives are — without acknowledging that fact. As I explained, the problem here is that conservative originalism is always sold as the only alternative to results-based jurisprudence. But if originalism has to be abandoned when it leads to heinous results, as Scalia bluntly admits it must, and one must jettison it and choose other interpretive methods to reach a more just result in some cases, then originalists are doing exactly what they accuse their opponents of doing – engaging in results-based jurisprudence.
The point here is that this should simply be admitted, that all judges operate on the basis of attempting to reach just results and they choose their interpretive methods (and choose to reject them when necessary) to reach those ends. And all that hypocritical rhetoric aimed at the advocates of living constitutionalism and other modes of interpretation should go away because originalist judges are doing the same thing, they’re just refusing to admit and refusing to stop berating others for the same sins they commit.