If a Theory Tends Toward Abuse, It's Probably a Bad Theory

Over at the Originalism Blog, David Weisberg writes about Michael Ramsey's post arguing that originalism has constrained the Supreme Court from actively outlawing abortion on Constitutional grounds. I criticized Ramsey's post here.

Ramsey was responding to Paul Waldman, who wrote in the Washington Post that Supreme Court nominees lied when they testified at their confirmation hearings that originalism was a neutral judicial philosophy. As Weisberg characterizes it:

Paul Waldman, writing in the Washington Post, claims that the recent arguments in Dobbs reveal that Trump’s three Supreme Court nominees perpetrated “a lie, scam, con” when they testified that originalism, as they understood it, was a judicial philosophy that was neutral as to the outcome of any particular legal case or issue.  That is not a criticism of originalism.  It is instead a criticism of particular individuals who identify as originalists.

Originalists often defend their theory against criticism that judges and Justices fail to properly implement it by claiming that this a problem with practice rather than theory. Some have gone so far as to argue that originalism as a standard should be entirely divorced from considerations of implementation.  

Weisberg returns to this theme later in his post:

When one questions the good faith of the practitioners of a legal theory, rather than analyzing and criticizing the legal theory itself, a disheartening symmetry emerges.  Each side can say of the other: we do not believe that the reasons stated in your judicial opinions or your scholarly articles are your true reasons; the one true reason is your policy preference.  Similarly, each side can say: in deciding Case X, we did not adopt the most extreme position on the spectrum of policy preferences; this proves our decision is grounded in law and not in policy preference.  And the “liberal” side says that weakening or overturning Roe is a step toward a future originalist decision that the Constitution bans abortions in almost all circumstances, while the “conservative” side says that Roe itself is a first step toward a future living-constitutionalist holding that the Constitution prohibits any federal or state regulation of abortion.

Both of the claims Weisberg makes fail to make a resounding case for originalism.

If an interpretive theory tends toward abuse, it is probably a bad theory. A theory of constitutional interpretation may, by its nature, lend itself to misapplication or use as a cover for political goals. It's a blanket assumption for most originalists that the broad family of theories that they label "living constitutionalism" (read: just about anything other than originalism), are such theories. Living constitutionalism tends to result in its adherents simply applying their policy preferences rather than engaging in interpretation. A substantial component of originalism's popular appeal is that it supposedly sidesteps this problem. The original public meaning of the Constitution is a verifiable Truth that can guide decisionmakers and prevent them from resorting to deciding cases based on their political whims. 

To be sure, this characterization of originalism versus living constitutionalism is an oversimplification of the academic literature. Much has been written by academics on various sides of the debate arguing for other normative reasons to accept originalism over alternate theories. But this discussion is largely isolated in the academic sphere. In politics and popular discussion, originalism continues to be praised for its constraining power--how it prevents "activist" judges from "legislating from the bench." At least, this is how originalism is praised when it is not used as a barely-concealed synonym for promising conservative results.

If originalism gets its appeal (or a substantial portion of its appeal) from its ability to constrain judges from deciding cases based on policy preferences, then it is concerning if judges use the theory as a cover to reach decisions based on political preferences. This is supposed to be the outcome that originalism should prevent, after all. Weisberg claims that this type of criticism can be leveled against practitioners of any theory, but this isn't always the case. Some theories of interpretation may call for readings of constitutional provisions that lead to certain types of policy outcomes or that have certain practical results. Such an approach would be unacceptably political if explicitly employed by a self-proclaimed originalist, but it defines the approach of the other interpreter. A theory of interpretation that largely is based on policy considerations is not mis-implemented when a judge decides cases based on those considerations. There may be other reasons for disliking the theory--but disingenuous implementation and a lack of transparency is not one of them.

But politicized decision-making is a problem for theories that purport to be neutral--particularly for theories like originalism that gain much of their popular appeal from claiming to be neutral. If a theory, by its nature, tends to be abused in practice--if, when implemented, it consistently results in decisions in line with political preferences rather than its proclaimed neutral principles--this is a problem for the theory. And as much as the theory's proponents may point to instances of misapplication of the theory as problems with judicial actors rather than the theory itself, these instances are evidence that the theory itself tends toward misapplication and abuse. If a purportedly neutral theory ends up being misapplied most of the time, that's a reason to have second thoughts about the theory itself. After all, all of this theorizing about law and interpretation doesn't have an impact on the real world until a court applies the theory.

I've argued elsewhere that originalism tends toward abuse--primarily to the extent that it cannot be rigorously and feasibly implemented, and that this leads to decisions based on other, largely political, considerations. Those like Weisberg who would dismiss this criticism as a problem with practitioners rather than the theory itself forget that law is shaped and enforced by practitioners. Losing this perspective all too often results in ignoring reality for the sake of theory and failing to appreciate the real world implications and consequences that motivate these discussions in the first place.