The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Harvard Law School Professor Cass Sunstein, one of the nation's leading constitutional theorists, recently wrote a column arguing that consistent application of originalism might lead to a variety of "intolerable" results:
1. States can ban the purchase and sale of contraceptives.
2. The federal government can discriminate on the basis of race—for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
3. The federal government can discriminate against women—for example, by banning them from serving in high-level positions in the U.S. government.
4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
6. States can establish Christianity as their official religion.
7. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.
Originalist legal scholar Michael Ramsey offers a strong response. As he points out, leading originalist legal scholars have offered a variety of arguments explaining why originalism does not in fact require these outcomes. Moreover, most versions of originalism incorporate deference to at least some long-established precedents that might have been wrong as an original matter.
With respect to Sunstein's seventh example, Ramsey notes that it would not in fact be an "intolerable" result for the federal government to leave many local pollution issues in the hands of state and local governments. Many federalism scholars—myself included— argue that that would actually lead to better and more efficient policy, as well as be more consistent with the text and original meaning of the Constitution. We could be wrong about this. But it is not an "intolerable" or unreasonable position, and is certainly well within the mainstream of modern thought on federalism and environmental policy.
Another problem with Sunstein's argument is that it could easily be turned against living constitutionalism no less than originalism. Most versions of living constitutionalism give judges considerable scope to reinterpret the Constitution in order to address modern social needs. Many of the results Sunstein fears originalism might produce could easily be rationalized by living constitutionalists as necessary responses to changing social conditions.
For example, a living constitutionalist might believe that a religious revival could help alleviate a variety of modern social pathologies, and that state promotion of Christianity could aid in that process. If so, perhaps we should indeed let states establish Christianity as an official religion and otherwise promote its spread. A recent survey found that almost a third of the public believes that "being Christian" is a "very important" part of "being truly American." Living constitutionalist judges who feel the same way could readily decide that we should overrule or at least greatly narrow precedents constraining state promotion of Christianity.
Similarly, a living constitutionalist could conclude that, under modern conditions, racial, ethnic, and religious profiling is an essential tool for combatting crime and terrorism. Therefore, we should loosen or even eliminate constitutional restrictions on discrimination by law enforcement. They could also cite social science studies suggesting that ethnic diversity reduces social trust and social capital, and thereby rule that states should be given a freer hand in promoting racial and ethnic segregation. This latter possibility actually has historical precedent. In the early 20th century, Progressive living constitutionalists did in fact argue that the state and federal governments should be allowed to engage in extensive discrimination in part based on supposed scientific evidence indicating that it would alleviate various social pathologies.
Sunstein's fifth example is vulnerable to the objection that most living constitutionalists already accept arrangements under which "some people could be given far more political power than others." Few if any argue that the Senate and the electoral college are unconstitutional, even though both have the effect of giving voters in some states far greater influence than those in others. This imbalance might well be a bad thing. But it is hard to argue that originalism is indefensible for permitting at the state level arrangements that living constitutionalists accept at the federal level—where they are much harder to change and affect more people.
Critics of originalism could respond by pointing out that most actual living constitutionalists are vehemently opposed to doing any of the things he fears originalism might lead to. But of course the same is true of most originalists. In both cases, the point at issue is not what particular individuals prefer, but what is permitted by the logic of their respective theories.
Both originalists and living constitutionalists like to claim that their opponents' theories lead to outrageous results. But such accusations should carry little weight unless and until the critic rigorously examines the logic of the theory in question and shows that it really does have those implications. Both originalism and living constitutionalism have multiple variants, and it could turn out that some versions of either theory lead to worse outcomes than others. Given the great diversity of both originalist and living constitutionalist legal thought, it would be surprising if that were not the case.
Sunstein also contends that "the views of many self-proclaimed originalists line up, not with those of We the People in 1789, but with those of the right-wing of the Republican Party in 2017." There is a good deal of truth to this point. But such bias is not limited to originalists. One could just as easily say that "the views of many self-proclaimed living constitutionalists line up, not with sound theoretical reasoning, but with those of the left-wing of the Democratic Party in 2017." It is easy for adherents of any constitutional theory to fall prey to partisan bias. That widespread tendency is lamentable, but says little about the merits of the theory in question.
Finally, if we are going to judge constitutional theories by their consequences (as I believe is often justified), then we should pay less attention to scenarios where judges might do something "out of the mainstream" and more to situations where the mainstream itself has gone badly wrong. The political and legal system have lots of resources for blocking terrible outcomes that are at odds with the dominant views of legal elites and majority public opinion. That includes most of the scenarios that Sunstein describes. His examples derive their intuitive force precisely from the fact that majority public and elite opinion finds them outrageous. That very outrage, of course, makes them less likely to happen.
The really difficult challenge for constitutional theory is how to address situations where the mainstream has gone bad. Most of the Supreme Court's worst decisions occurred precisely because mainstream opinion at the time supported them.