Michael Dorf has posted a reply Can’t We All Just Get Along? to my earlier defense of the compatibility of a correct version of originalism and a correct version of living constitutionalism. Because he eschews “academic esoterica” it is difficult to fully understand his position. As near as I can tell, his entire argument appears in this passage:
Either the domain of construction is large relative to interpretation, in which case originalism is a largely indeterminate theory, or the domain of construction is small relative to interpretation, in which case a jurisprudence of original understanding would look very different from the living constitutionalism that we have. And if that’s so, then originalism remains susceptible to the criticism that it leads to morally odious results (e.g., the 14th Amendment doesn’t forbid most forms of official sex discrimination) or results that would be enormously disruptive of our legal/political order (e.g., much of the federal administrative state is invalid).
I have two responses to this. First, however large or small is “the domain of construction” is to be decided after we decide what meaning is conveyed by the text. I believe (a) that a great many cases would be decided by this meaning, (b) choices within the remaining domain of construction would still be bounded by this meaning, and (c) a good deal of constitutional law would still be required to put the meaning of the Constitution into effect. For example, the doctrines of “content neutrality” and “time, place and manner” regulations are not in the Constitution itself, but are doctrines that may be justified as putting into effect the freedoms of speech, press, and assembly.
Second, Dorf’s main point is his references to interpretations that would either be “morally odious” or “enormously disruptive of our legal/political order.” Although these appear to be two different criteria, only the first really counts. In the the 1920’s, for example, the rejection of separate-but-equal would have been REALLY disruptive of the political/legal order, but I am sure that Dorf would say this should have been done anyway to avoid morally odious results.
So in practice moral odiousness is really doing all the work. The problem is the existence of disagreement over moral odiousness. While a consensus about the moral odiousness of racial apartheid exists today, it did not exist in the 1920s when President Wilson segregated the federal government for the first time. And it did not even exist through the 50s and 60s. So if we follow Dorf’s apparent methodology, courts should have upheld Plessy v. Ferguson until the late 1960s when a consensus about its moral odiousness had emerged.
UNLESS, Dorf really means that courts should avoid results that HE and those who agree with him believe are morally odiousness, though many Americans may disagree. In other words, judges should follow their own moral views (if they agree with Dorf’s) regardless of how widely accepted those views may be. But this methodology simply places the moral views of judges above whatever independent meaning the text of the Constitution may have. And you will remember from my last post that this is indeed Dorf’s position: “[C]ontrary to conventional wisdom,” he wrote, “constitutional doctrine typically trumps constitutional text