ORIGINALISM.

• Author: Sunstein, Cass R.

INTRODUCTION

I have two goals in this Essay. The first, and the narrower, is to square two convictions: (a) there is a strong argument for originalism in the context of the Impeachment clause and (b) there is no strong argument for originalism in the context of the Equal Protection Clause. (I mean the two clauses as examples of sets of provisions for which originalism does and does not make sense.) The second, and the broader, is to suggest that originalism must be defended pragmatically, which means (in my understanding) that it must be defended on the ground that it will produce good consequences. In imaginable worlds, that defense would be convincing. But it is not convincing in our world, at least not as a general rule. (I will qualify this conclusion, because the answer depends on what, exactly, originalism is taken to entail.)

The two goals are related. The pragmatic argument for originalism is most powerful under two conditions. First, there is nowhere else to turn with respect to interpretation of the constitutional text, in the sense that other legally relevant materials are absent. Judges or other interpreters lack precedents or traditions that can be taken to help solve interpretive puzzles. Second, the original meaning is excellent, or at least good or good enough, and it is far from clear that judges or other interpreters can improve on it. (1) One way to put it is that the original meaning is a reasonable focal point. Another (and in my view preferable) way to put it is that in such cases, originalism has low decision costs, at least compared to imaginable alternatives, and it also has low error costs, again compared to alternatives. (Pragmatists like to focus on decision costs and error costs.)

It follows that the pragmatic argument for originalism is not strong under mirror-image conditions, in which interpreters have relevant precedents or traditions, and in which the original understanding is pretty bad and judges or other interpreters are clear that they can improve on it. In such cases, nonoriginalist approaches will have acceptably low decision costs (because of those precedents or traditions) and, under plausible assumptions, they will have lower error costs as well (because the original understanding is pretty bad).

Harder cases arise in which only one of the two conditions is met, and I will have something to say about such cases as well. My basic conclusion is that if precedents or traditions are both longstanding and clear, the argument for rejecting them, by reference to the original meaning, is usually quite weak.

Two clarifications before we begin. First, I will argue that any approach to interpretation must be defended on the basis of its consequences. But I mean this claim to be ecumenical, in the sense that the idea of "consequences" should be taken very broadly. It need not be identified with utilitarianism or welfarism. It might include ideas about rights and selfgovernment. We might well be able to obtain an incompletely theorized agreement on some approach to an interpretation--that is, an approach that obtains support from different theoretical foundations. (2)

Second, my central argument leads to the following question: Within the (broad) constraints of the concept of interpretation, and within the constraints of existing law governing that topic, (3) shouldn't judges do whatever they deem best? If what judges deem best is in fact best, the answer should be obvious: yes, at least if we have a suitable and suitably broad conception of what is best.

The problem, of course, is that what judges deem best may not be best. Theories of interpretation must be developed with close reference to the risk of judicial fallibility. One of the attractions of originalism, at least for some people (including the present author), is that it is highly responsive to that risk; (4) other theories of interpretation can claim to be similarly responsive. In evaluating originalism, I will emphasize the importance of taking account of judicial fallibility.

1. WHAT IS ORIGINALISM?

   There is of course a voluminous literature on originalism and in particular on what it entails. (5) Reasonable people, committed to originalism in the abstract, disagree about how best to understand that commitment. In recent years, there has been an outpouring of illuminating work on the topic. Today's originalism is not your grandfather's originalism, or even your father's, and probably not your older sister's.

   The origins of originalism are intriguing and in some ways surprising. The term was first used by Paul Brest in an article that purported to be, and in some ways seemed to be, devastating to the whole idea. (6) Notwithstanding Brest's objections, the idea was enthusiastically taken up by President Reagan's Attorney General Edwin Meese and his Office of Legal Counsel. (7) At that point, originalism seemed to be a highly political weapon in a highly political war over the future direction of the Supreme Court. Whether right or wrong, originalism served as a foundation for an objection to the Warren Court and to Roe v. Wade. (8) It seemed to provide an intellectual basis (or, far less charitably, a cover) for embracing conservative results in constitutional law, and hence it was no surprise that it had (and has) far more appeal to the political right, and its academic and judicial analogues, than to the political left.

   Whether fairly or unfairly, many of the critics of originalism took it to be politically motivated and result-oriented, notwithstanding its claim of neutrality. Importantly, and in response to some serious objections, there was a shift from a focus on "original intent" to a focus on "original meaning." (9) But the political valence appeared clear, at least to many observers, sympathetic or not. A clue: at meetings of the Federalist Society, originalism often had a prominent place; at meetings of the American Constitution Society, not so much. (10)

   At least in the law journals, the longstanding political drama has (I think) been quieted by some of the most interesting current work on originalism, which seems to proceed under a veil of ignorance, and hence to abstract from, and even not to answer, the question whether it leads to particular results. (11) We might even give it a name: Veil of Ignorance Originalism.

   In the hands of some of its best contemporary defenders and expositors, the idea of originalism has also become quite capacious, so that it can accommodate a wide range of modern doctrines that seem, at first glance, to be forbidden on originalist grounds. If we insist on a distinction between interpretation and construction, and find a large "construction zone," (12) there might well be a large overlap between certain forms of originalism and certain forms of nonoriginalism. I aim to limit the level of complexity and detail, (13) and to understand originalism as committed to the simple idea, on which there is now a near consensus, that interpreters are bound by the original meaning of constitutional provisions. (14)

   1. Semantic Originalism

      That conception of originalism leaves many open questions. (15) On a very thin view, what governs is the original semantic meaning, understood as the meaning of the words in the English language at the time. (16) Call this Semantic Originalism. (17) If the words "domestic violence" did not originally mean spousal abuse, then they cannot mean spousal abuse today. If the words "equal protection" originally had nothing to do with condoms, then they cannot now have anything to do with condoms. If the English language changed radically, so that "due" meant "awesome," "cruel" meant "wonderful," and "vested" meant "wearing a vest," the meaning of the Constitution would not change, because the original semantic meaning is what governs.

      Is Semantic Originalism correct? In the cases that I have given, it seems to be. Generally it is. But it does not capture all of our actual practice. Consider three examples:

      1. The federal government is not governed by the Equal Protection Clause, which applies only to the states, and yet the Due Process Clause is said to have an "equal protection component" forbidding the federal government from discriminating on the basis of race and sex. (18)

      2. The First Amendment says that " Congress shall make no law... abridging the freedom of speech," (19) and yet the protection of freedom of speech is applied to the executive branch and the courts.

      3. If we are Semantic Originalists, it will not be easy to defend the conclusion that the Equal Protection Clause forbids racial segregation in public parks and public golf courses; at the time of ratification, the word "protection" had a specific meaning.

      With respect to each, I would not reject our current practice, and the examples support David Strauss's argument that our constitutional principles emerge from a common-law process in which even the text is not always decisive. (20) We should therefore agree that, in some ways, our practice confounds Semantic originalism. Nonetheless, it is usually true that judges act in accordance with it. But if it is taken as I have described it here, it is generally trivial in the sense that it rarely dictates results that nonoriginalists would reject.

   2. Historical Context Originalism

      On a much thicker view, the original meaning is not limited to semantic meaning. It captures what the relevant English speakers, at the time, would have understood the words to mean in their context. The much thicker view is that the original meaning goes beyond the original semantic content of the constitutional text and includes an understanding of the historical context, used to eliminate ambiguity. (21) Call this Historical Context Originalism, to which most contemporary originalists subscribe. (22)

      Suppose, for example, that "the freedom of speech" did not include commercial advertising or libel and that "the equal protection of the laws" had nothing to do...