I’m with Will. This question from Milbarge at Begging the Question is too easy.
Is there anything that an originalist interpretation of the constitution tells you is constitutional, but that you’re against anyway, say as a matter of policy, or that you’d vote against as a legislator?
Even an originalist whose understanding of original understanding is pretty constrictive of state action– such as our own Randy Barnett– presumably has an easy time answering this question. I’d guess that Randy opposes, say, the existence of the federal postal service as a matter of policy, but doesn’t deny its constituionality. There might be a constitutional argument to be had over the postal monopoly, but pretty clearly the Constitution-as-originally-understood authorized the creation of a postal service.
For most originalists, the question is easier still because they think most things are constitutional. They think it is constitutional to ban contraception and that it is also constitutional to repeal the ban on contraception. They surely oppose one of these as a matter of policy. Ditto for sodomy: constitutional to ban it, constitutional to repeal the ban. Ditto for many regulations of (genuinely) interstate commerce. Borkian originalism (or its more sophisticated Scalian cousin) maintains that the original understanding of the constitution means most possible state actions are constitutional. And since any given state action can go two ways (in the ban-or-repeal-the-ban cases) or many more ways (what shall our interstate commerce regulations be? How high shall our tariffs be? What treaties shall the President-with-the-advice-and-consent-of-the-Senate enter into?), inevitably the originalist faces lots of policy options that he or she thinks constitutionally permissible but imprudent, unwise, unjust, or “uncommonly silly.”
The harder set of questions: what laws do you think are unconstitutional that you would nonetheless favor on grounds of policy and justice?
UPDATE: Milbarge responds (in an update; same link as above.) I think I see now. The question wa ssupposed to be at a different level of generality– not: do originalists think that some particular laws are constitutional are nonetheless dumb laws? but rather: do originalists ever think that a better constitution, all things considered, would allow some things that our constitution-as-originally-understood forbids, or vice-versa?
Does it make it any clearer if I say I’m asking not about constitutional challenges to laws or policies, but first-order constitutional interpretation in the abstract?
For example (asking rhetorically), what is Justice Scalia’s or Judge Bork’s (or Prof. Levy’s, or Will Baude’s) originalist interpretation of the phrase “cruel and unusual punishments”? Or “probable cause”? Or “the right to bear arms”? Or Congress shall make no law”? And when they come to that conclusion, do they ever wish they were wrong? Does Judge Bork ever say that we’d be a lot better off with more nude dancing establishments, if only it weren’t for those pesky framers and their understanding of “freedom of speech”? Does Justice Scalia send Christmas cards to the U.S. Sentencing Commission, saying it’s a fine institution, and too bad it’s not constitutional?
I think this makes perfectly good sense and in a way is a more fun question than either the one Will and I took Milbarge to be asking or the one we suggested in its place. I’m pretty sure the answer is “yes.”
I strongly suspect that Scalia thinks he’d rather, in an ideal world, live under a constitution that forbade flag burning, permitted independent prosecutors, and allowed courts to deny accused child molesters the ability to confront their accusers in person. But he thinks we don’t live under such a constitution. Bork I won’t speak for. But for my own part, I think fast-track approval of trade treaties is unconstitutional under the constitution-as-written. (I’m ambivalent about whether I’m an originalist across the board, but I do think that plain textual statements about procedures need to be respected.) But I think that treating trade treaties as plain old Senate-amendable treaties would be catastrophic; I would vigorously support a constitutional amendment to legalize the fast-track mechanism. I think a better Constitution would permit pretty tight restrictions on jury trials in civil cases, but that ours does not.
Now Randy, unlike Scalia or Bork, has an understanding of originalism that does rest at a crucial justifactory stage on the justice of outcomes. A constitution whose best, truest understanding led to deeply unjust outcomes would not be “binding in conscience.” That doesn’t mean the injustice should be interpreted away; it means that the constitutional regime demands to be changed. He thinks that the U.S. Consitution-as-amended, rightly (originally) understood, is not such a document. But even his theory doesn’t demand that a Constitution mandate just outcomes in all particular cases.
Comments are closed.