Non-Originalist Theories Of Constitutional Interpretation Part I

Originalists are often accused of pretending that the world of constitutional interpretation consists solely of two camps: Originalists and non-Originalists. Although this charge is often overstated, Originalists often do tend to view their opponents as part of a unified camp of theories that oppose interpreting the Constitution according to its plain meaning at the time its ratification/creation.

On the heels of a paper about how there is no substantial agreement among Originalists about the Originalist enterprise, Larry Solum responds by arguing that Originalists do have a common theme:

The core commitment of originalism is the thesis that the semantic content of the Constitution was fixed by the relevant facts at the time each provision (the Constitution of 1789 and the amendments) was ratified.

Originalism differs from non-Originalist theories by making specific facts at the time of founding dispositive or at the least very important. Originalism considers either the intent of the Founders or the public meaning of the text at that time as strong evidence of the text's meaning. So in a sense non-Originalist theories do tend to have a unifying factor: they all refuse to grant certain facts or ideas from 1786 serious weight. What the terms meant then might be relevant, but it does not outweigh other more important facts, such as consequences, morality, or the meaning of the text today.

What are those different theories? This post would have been easier to write a few years ago before almost everyone in the liberal camp decided to jump onto the Originalist bandwagon. But I'll do my best to break down the different non-Originalist groups, while leaving the Originalist camp for a different post. I will also try to get the theories as accurate as possible, but I'm sure I'll get some facts wrong. Please correct me in the comments.

1) Pragmatism: Pragmatism involves looking at the consequences of a decision as much as the legal texts that are relevant to that decision. Most forcefully articulated by Richard Posner, Pragmatism accepts the validity of texts only insofar they generate favorable consequences. Posner's Law and Economics method of deciding non-constitutional cases in an outgrowth of Pragmatism.

Posner is especially supportive of eliminating formal restrictions that serve no practical purpose. For example, the Supreme Court has generally refused to apply many of the constitutional protections to activities by the government that are committed outside of the borders of the US. So, for example, the Court has not yet granted the inmates of Guantánamo Bay formal constitutional protections. But the exact same activities in the US would generate those protections. Posner believes the distinction is useless, since the government will just create detention camps outside of U.S. territory where there will be even less oversight. So he suggests a uniform rule, one which gives suspects in Guantánamo more rights than they have now but less rights than they would have in a similar camp in the US.

This argument clearly distinguishes Posner's method of interpretation from Formalism. Formalism is about following the rules despite the consequences. If the precedents demand delineating based on where the government incarcerated the terrorist, then we must continue to make that distinction. Posner only follows precedent itself for instrumental reasons and if the consequences of the precedent are negative, he'll forgo the precedent entirely.

2) Judicial Minimalism: This theory involves deciding cases as narrowly as possible rather than making decisions based on broad principles. A good example of Minimalism is Cass Sunstein's hypothetical decision in Brown v. Board of Education. Rather than promulgating the broad idea that separate can never mean equal, Sunstein would have continued the tradition of desegregating on the grounds that separate was unequal in that particular situation. Segregation in public schools was not unconstitutional because the Constitution forbids separate but equal in the public school setting, but rather because in the situations before the Court in 1955 in the two-tier public school system in the South was woefully unequal.

Sunstein's book One Case At A Time argues for deciding cases based exclusively on the facts in front of the judge. Sunstein applauds the Court's decision in Romer v. Evans, a case which ruled a Colorado law that prohibited giving government protections against discrimination on the basis of sexual orientation was unconstitutional, because instead of ruling that all discrimination on the basis of sexual orientation was unconstitutional, they limited their ruling to one specific instance of such discrimination. As more and more cases end up on the Court's docket, the Court will slowly, but surely, ban invidious sexual orientation discrimination.

This ideology squares with the Conservatism of Edmund Burke, the British philosopher. Burke argued that society was structured in a nonhaphazard way and making radical changes could have unforeseen negative repercussions. Sunstein opposes making radical changes partly because such changes could lead to opposition by a large disgruntled segment of the population.

Another supporter of Minimalism was Alexander Bickel. Bickel believed that cases that can be decided on procedural grounds should not be determined based on substantive arguments.

In Part II I'll go through Judicial Conservatism, Libertarian theories, and possibly Ronald Dworkin's theory that law must fit with our legal scheme and be justified morally.