Thoughts on Originalism

From Randy Barnett:

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.

Read the whole thing.  There’s more posts on this topic here and here.  I would love to get the left on board with an originalist constitutional consensus, but I doubt they’ll ever be able to accept it.  And why should they?  Progressive thought has largely dominated for the last century, and I don’t see any signs that it’s going to be change anytime soon.  I think George W. Bush’s presidency might have been enough to get them to flirt with the idea, but they are seeing salvation in the possibility of Obama, and I think there’s a good chance they’ll get it.  Constitutionally limited government is a bummer when you’re in power.

2 Responses to “Thoughts on Originalism”

  1. Noops says:

    I’m not just Bush-Bashing here. Read the whole thing before you beat me up.

    The problem I have with this is that Bush used the executive/legislative at the cost of the Judicial, or often as an end run around the judicial or stare decisis. Things like Terri Schiavo and the Oregon Death With Dignity Act come immediately to mind. Schiavo is obvious. Oregon’s thing violates so many conservative ideals it still bothers me 4 or 5 years later. We (Oregonians) referendum voted on the law twice. It was challenged unsuccessfully in court, and so the Administration attempted to apply its ideas of “moral odiousness” by having Ashcroft threaten doctors with the loss of their license as a result of violating the Controlled Substance Act. This happened in 2001 right after Bush’s campaign ran such a great campaign with limited federal intrusion as on of their core messages.

    No to the critical point. These things, and more contemporary issues like Telco Immunity are beginning to see the result of what is effectively a scorched earth policy. A backlash among swing voters, and middle of the road democrats and republicans, and libertarians has come from these types of things (furthered even more recently by the SG in the Heller case).

    If we wanted to see some real change in the Judiciary through nominations, the strategy failed to the tactics. In other words, Bush won some battles, but in doing so alienated so many people (like here in Oregon, where we think we should be able to vote (twice) affirmatively on something that wasn’t/isn’t unconstitutional without fear of the feds). So he won some battles but lost the war. Now I suspect we’ll see a backlash to that scorched earth policy.

    I DO think (or at least hope), that the Heller case came at a fortunate time in that we aren’t likely to see a panel that’s as or more likely to uphold the appellate’s ruling. Still, it’s a long way off from a sure thing.

  2. Sebastian says:

    I don’t have any essential beef with that argument. Bush has failed the conservative movement in some very big ways.