Cooper on Originalism
Jeff Cooper has a very thoughtful post on originalism. Here is an excerpt:
- [W]hatever its merits might be, originalism is hard, much harder than its proponents generally acknowledge. I’m reminded of Judge Richard Arnold’s panel decision for an Eighth Circuit panel in Anastasoff v. United States (a decision later vacated by the court en banc), in which he concluded that the circuit’s practice of issuing nonprecedential unpublished opinions was unconstitutional because it contravened the original understanding of “the judicial power” in Article III. Judge Arnold’s support for this conclusion consisted largely of a brief passages in a couple of Federalists, as well as a smattering of references to Blackstone, Coke, and Hale. But, influential as those sources may have been, they do not fully capture the understandings of the legal and political communities of the time (as a number of scholars, myself included, have suggested, drawing on additional historical materials). Judge Arnold is a fine judge (and one to whom I owe a personal debt of gratitude, as he favorably reviewed some of my work–work that took issue with his own views–during my application for tenure), and he made a sincere effort to engage with historical materials. But his efforts at originalism in Anastasoff were deeply flawed.
That may be the result of structural constraints more than anything else. Appellate judges, with their heavy caseloads, are poorly positioned to perform serious historical work. Supreme Court justices, with their lighter workloads, may be better situated. But the vast majority of them will still lack any serious training in history as a discipline. It should therefore be no surprise when they produce lousy history.
Cooper’s point about the difficulty of originalism points to a much larger gap in constitutional theory–the neglect of institutional concerns, a topic about which Cass Sunstein and Adrian Vermeule have an interesting article discussed here (the very first post on Legal Theory Blog).
And Cooper’s point suggests another one. Originalism is potentially quite radical. Assume that a series of transformative appointments gave us a thoroughly originalist Supreme Court in just a few years. Assume further that this Court believed that original meaning trumped settled historical practice (e.g. longstanding constitutional interpretations by the political branches) and precedent (e.g. constitutional interpretations by former Courts). This hopelessly general and conclusory, but I think an originalist court would be forced to work a revolutionary restructuring of the American institutions. Much of the federal government would have to go–falling to the original and narrow understanding of federal power and separation of powers. Much of the individual rights jurisprudence upon which American’s have come to rely would be swept away, although a new and different jurisprudence might well take its place.
The fact that originalism is hard and radical does not mean it is wrong. But these points raise an interesting and important question–one that in my mind has been neglected by legal theorists: How should the transition to originalism be accomplished? That is, if you are an originalist, what story do you tell about the path to originalism? I don’t think originalist scholars can say: “We will just take it one case at a time.” Because it won’t happen one case at a time. If originalism ever really gets going as the dominate constitutional methodology, it may start as a trickle of cases, but it won’t take long for that trickle to become a flood–assuming, of course, that stare decisis does not play a constraining role. The precondition for originalism becoming dominate is an originalist majority or supermajority on the Supreme Court. Until that precondition is satisfied, originalism cannot really take off, but once it is satisfied, originalist precedent will begin to accumulate very quickly. The constitutional landscape can change radically in only a few years–think about the five year period from 1937-1942.
Enough ranting, read Cooper’s fine post and then follow his links to more good stuff.