MORE ORIGINALISM….Since I live in the hinterlands of Irvine and the Washington Monthly is produced in, um, Washington, I’m not always aware of what’s coming up in future issues of the magazine. It turns out, though, that last night’s post about originalism was well timed from a blog/magazine synergy point of view, because the September issue has a review of Cass Sunstein’s Radicals in Robes that addresses exactly the question Dahlia Lithwick and I were asking: where’s the liberal response to the originalists who currently dominate popular opinion regarding proper interpretation of the constitution?
In “Judging the Judges,” Stephen Pomper writes that Sunstein groups legal theorists into four camps. “Fundamentalists” (i.e., originalists) are on the far right, “perfectionists” are on the far left, and “minimalists” are on the center left:
Minimalists, explains Sunstein, are opposite in temperament from both originalists and perfectionists: They don’t want the courts getting into deep first principle type questions on contentious social issues. They prefer that the law be changed through narrow rulings and small nudges rather than precedent-setting earthquakes. Minimalism does not have the grand theoretical architecture of an approach like originalism, and Sunstein recognizes this, but its modest claims are rather attractive.
Modest claim #1: By leaving big decisions to the elected branches, it’s fairly democratic?certainly more so than perfectionism or originalism, both of which afford more discretion to the courts to overrule the elected branches. Modest claim #2: It has crossover appeal. Moderate conservatives like Justice O’Connor can do it. (They nudge the law right.) Moderate liberals like Justice Ginsburg can do it. (They nudge the law left.) Modest claim #3: Minimalism reduces the risk of huge screw ups. It recognizes that the courts operate in a sphere of great moral and ethical ambiguity and that if the Court comes down too firmly on one side of an issue it may in fact be monumentally wrong.
As for originalism itself, Mitchell Freedman points out that there’s considerable evidence that the founders themselves believed the constitution to be a living document, a paradox that modern originalists prefer not to deal with.
Meanwhile, Marc Lynch says he doesn’t know much about constitutional law, but he does know a bit about Islamic fundamentalist (salafi) jurisprudence ? and to his ears it sounds disturbingly similar to American originalism. He even has some research suggestions for anyone who wants to explore this parallel further.
Finally, Nathan Newman points out that the founders aren’t the only people to look to for originalist opinion anyway. Much of modern constitutional law is based on the 13th, 14th, and 15th amendments, and those amendments were passed by the Radical Republicans shortly after the Civil War. A true originalist would also look to them for textual guidance, but the reality is that most originalists give them short shrift. Why? Because their opinions don’t line up with modern conservativism. It’s funny how some framers count and others don’t, isn’t it?