Originalism and the Dual Critiques of Indeterminacy and Dishonesty

At the Originalism Blog, Michael Ramsey writes about a couple of recent columns by Eric Segall and Andrew Koppelman, both of which are inspired by Justice Ketanji Brown Jackson's confirmation hearing. This post focuses on one of Ramsey's quick reactions to Koppelman's column.

Koppelman writes:

Originalism has three central problems. It doesn’t really constrain judges. Even if it did, it would do so randomly and chaotically. But in fact, as it has been deployed in the Supreme Court, it is a fraud: The self-styled originalists don’t really care about historical evidence. They manipulate it to reach the results they find politically congenial, and then parade their virtue by saying they are merely following the law.

Ramsey responds:

This essay, like others in a similar vein, seems to suffer from inconsistent claims: either (a) original meaning is indeterminate and so isn't useful as a way of constraining judges, or (b) purportedly originalist judges are frauds in that they ignore the best historical evidence to follow their political preferences. These are both potentially powerful critiques but they're inconsistent so the critic needs to pick one or the other. (Lawyers can argue in the alternative but scholars shouldn't.)

Ramsey goes on to respond to each of these issues, but I want to focus on this initial point. This claim of inconsistency is misguided, as both of these problems may exist simultaneously. One way to illustrate this is to take into account multiple categories of originalist actors. I focus on two categories here: (1) academic originalists; and (2) judges and Justices who claim to be originalists. Critiques of indeterminacy tend to have their place in the academic 

First, consider critiques of originalism as presented by its scholarly proponents. A critic may correctly argue that original meaning may be difficult or impossible to determine. There may also be multiple potential original interpretations of particular provisions. Academic originalists aren't without responses.  They often acknowledge that determining meaning is only one step of interpreting and applying the Constitution to cases before courts or to guide one's behavior. Interpreters may rely on particular rules to determine what interpretation should ultimately be implemented--for examples, rules that the most commonly used meanings of terms should be employed in cases where provisions have multiple meanings, or rules that ambiguous provisions should be interpreted with an eye to the "spirit" of the provisions (or the Constitution as a whole). Critics, in turn, may respond that the choice of what rules to use may inject further indeterminacy into what meaning is ultimately implemented. They may also argue that certain approaches to translating the meaning of constitutional provisions into implementable legal rules and determinations may introduce plenty of opportunities for vagueness and personal opinions to sway decisions. It may turn out that these layers of potential inconsistency are enough to doom originalism as a desirable approach to constitutional interpretation. The debate goes on.

While battle over academic theories of originalism rages in the pages of law reviews and on legal blogs, judges and Justices are making decisions on real world cases. Some of these decisions may be made on purportedly originalist grounds. And it may not take much analysis to realize that these originalist grounds ultimately have little to no connection to any accepted version of the original public meaning of the Constitution. Through selective citations to the vast originalist literature (vast, in part, due to the sheer quantity of theorizing necessary to translate indeterminate provisions into implementable interpretations), judges and Justices may back up their goal-oriented decisions with enough citations and historic hand-waving to create an appearance of legitimacy. 

There doesn't seem to be anything inconsistent about pointing out these two problems with originalist interpretation. Originalism may ultimately provide a range of potential meanings--a range that may be so broad (or that lacks a principled manner of choosing between options). While this issue and the potential meanings and methods for choosing between meanings is debated at the academic level, disingenuous, goal-oriented judges and attorneys may purport to take an originalist approach, yet go beyond the range of potential meanings originalism suggests. They may also reach conclusions that turn out to be consistent with originalism by happenstance, should those results end up being consistent with the desired result.  

Both of these problems can exist simultaneously, and both must be accounted for should originalists ever hope for their theory to be applied in a consistent, meaningful manner. Highlighting the seeming inconsistency of these problems in an effort to avoid criticism is nothing more than a dodge. 

One final point:

"Lawyers can argue in the alternative but scholars shouldn't." This seems to be a throwaway line, but it's a revealing example of legal academia's disconnect from the practice of law. There's been some more discussion lately of the ongoing trend of hiring professors with substantial academic, clerking, and fellowship credentials, but with little to no practice experience. Here, the disconnect is made explicit: "lawyers" are separated from "scholars," with the tactics of the former group having no place in the discourse of the latter. Perhaps this is an attempt to justify legal scholarship's increasing disconnect from the realities of practice--if the argumentative methods of lawyers has no place in legal academia, perhaps there is no loss as a result of the widening gap between practice and scholarship.

This instinct seems misguided. While legal scholarship certainly appears different from the arguments attorneys make in briefs and in court, it is (at least in theory) written with the purpose of describing or influencing the legal landscape. If legal scholarship is disconnected from practice (including the practical aspects of lawmaking, judicial opinions, and other real-world aspects of the law), it will end up having little to no impact beyond the theoretical universe it inhabits.