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 -- at least absent arguments of sufficient strength to overcome the principle of stare decisis."

This is a prescription for what Larry Solum has called the "downward spiral" of judicial nominations. If the Constitution has no meaning independently of a judge's own views of moral odiousness, then everything depends on getting judges who share your views of moral odiousness. But when there is substantial disagreement about what is or is not morally odious at any given time (as there always is about some matters but not others) then this becomes an ugly fight to the death where anything goes, which is exactly what has happened.

I think Dorf is being completely open and honest about his views about constitutional interpretation and, for that, I commend him. For him it is all about results. If the text and precedent reach the right results, follow the text and precedent. If the precedent reaches the right results and the text does not, follow the precedent and trump the text. But if the precedent reaches the wrong results, then come up with whatever "interpretation" of the text reaches the right result and discard the precedent.

This approach is everyone's first choice if they and those who agree with them are in power. But is is their last choice if those who disagree with them are in power. Everyone's second choice should be to follow the meaning of the Constitution and construe it in ways that do not contradict that meaning even where this may lead to some results of which you object AND expect your political opponents to do the same.

Ultimately, this is what a written constitution is for, provided that what the constitution actually says is good enough to follow. Sometimes I suspect that, in their hearts, "living constitutionalists" (in the bad sense) do not believe that what the U.S. Constitution says is good enough so they advocate methods of "interpretation" that enable them to avoid rather than follow what they believe is its morally odious meaning. In other words, these living constitutionalists substitute their preferred meaning for that of what they view as the morally odious Constitution.