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Friday, May 13, 2005

Originalists and Brown

Randy Barnett over at the VC has a good post on originalism and Brown.  Non-originalists use Brown to attack the acceptability of originalism.  That is, if originalism can't take us to Brown, then originalism is unacceptable.  Barnett points to articles by Judge McConnell and Edward Whelan that argue that originalism can get us to Brown, and further argues that non-originalists shouldn't be trusted to provide a reasonable originalist interpretation (particularly when the very goal of presenting such an interpretation is to undermine originalism).

That's all well and good.  (My own thought is that textualism can get you to Brown without resort to second-level interpretive theories like originalism or "the living Constitution.")

But Randy, don't you give away the ball game when you engage in this debate?  Doing so seems to implicitly accept the premise that "If originalism can't take us to the desirable result, then originalism is unacceptable."

The proper originalist response is to say, "We can talk about the proper outcome in Brown, but from our perspective, the outcome of that inquiry is irrelevant to the question of which interpretive techniques are most reasonable."

Let me ask the question this way, Randy: What if originalism couldn't take us to Brown?

Posted by Hillel Levin on May 13, 2005 at 11:16 AM in Legal Theory | Permalink


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I may be wrong, but I think Randy meant that not supporting Brown is political death -- not only will you never be able to get a job on the bench, but you will also be ostracized from "acceptable" legal circles.

Even Bork who was "Borked" on for the Supreme Court got a very prestigious bench job on the DC Circuit before that.

Bork's jurisprudence is very similar to Lino Graglia's. Graglia however, concedes that Brown was "activist." And as far as I understand, his position cost him an appellate judgeship. Maybe that's why Bork bent over backwards and made what I think was a pretty weak Original Intent defense of Brown (I think McConnell's case is probably superior). But the difference between a Bork and a Graglia is the difference between getting a federal judgeship and not getting a judgeship. It's hard enough for conservatives to secure academic positions, but can you imagine today a conservative who openly categorizes Brown as "activistic" and wrongly decided getting a job. I think it's these practical realities that Barnett was referring to.

Bork's "Original Intent" originalism has been superseded by a type of originalism, the type Barnett endorses, known as "Original Meaning" originalism. Perhaps a reason why OM originalism is more acceptable in social circles is because some liberal scholars actually endorse it (and it's compatible with some liberal results that Original Intent conservatives decry as "activistic.")

For instance, Randy Barnett wrote an Original Meaning defense of Lawrence. Similarly Original Intent originalism may be able to justify Brown, but there is no way it can justify Loving (although Original Meaning could) which is a decision that many originalist conservatives are now loathe to criticize. For more on this, see my latest blogpost.

Posted by: Jon Rowe | May 13, 2005 10:35:49 PM

I took a class with John Manning, who is an intelligent and articulate proponent of an originalist approach. One benefit Manning suggested was that originalist interpretation (and more generally, a limited conception of the role of the judiciary in statutory interpretation) had the salutory effect of "putting Congress's feet to the fire." That is, it's not that these changes shouldn't be made, but rather that Congress, not courts, should be making them. When courts act, they allow Congress to be lazy and to evade its responsibility. The courts should just interpret statutes as written and should adopt originalist constitutional approaches. Then, the public outcry over problem results will force Congress to properly do its job.

(An early version of this argument was raised by, as I recall, Justice Frankfurter, in a case about statutory conpensation for a death at sea).

I have my doubts about putting feet to the fire. (In particular, about the effect on the individual person who is the foot put into the fire -- i.e., whose case produces an outcome so outrageous that it sparks public outcry and forces change). But it's a coherent argument and, some would say, produces greater overall good. I suspect that it's a view much more palatable to utilitarians generally, and antithetical to Kantians.

Posted by: Kaimi | May 13, 2005 6:08:37 PM


Defending an attack on originalism is not the same thing as "promising palatable results". All Prof. Barnett and Whelan are saying is that it is mis-characterizing originalism to say it precludes Brown.

Justice Scalia spoke at my law school during my last year and said that as an originalist, he would have to conclude that a new state law that allowed for the "notching" of a criminal defendant's ears upon conviction was constitutional - because it was a punishment that existed at the time of ratification of the Eight Amendment. He said he hated that result and thought it a horrific idea, but pointed out that originalism leads to results that would unquestionably be politically unpalatable - and sometimes very politically popular. Booker would be an example of the latter (I'm guessing).

Posted by: MJ | May 13, 2005 3:42:40 PM


I think you are correct that this is what is going on; and that's precisely what I am questioning.

When someone says "I can't accept originalism because it costs me mom and apple pie," the proper originalist response is to reject the premise and say, "Worry about the Constitution first; we'll find your mom and bake you a pie later."

As soon as the originalist starts to reassure the questioner or making originalism more robust or more flexible in an effort to prove the viability and acceptability of originalism, she has committed the very sin originalists rail against: results oriented jurisprudence.

Adoption of originalism can only come from a political/jurisprudential theory of constitutionalism and governing; it has got nothing to do with securing certain results.

It is worthy, of course, for originalists to grapple with Brown; but the first response for a committed originalist in this situation is to reject the premise.

Posted by: amosanon1 | May 13, 2005 3:14:05 PM


I think he doth protest because originalists are often critiqued on the grounds that their theory would lead to unacceptable results.

Originalist: We should all be originalists. Then we wouldn't have those abominable decisions like Roe.

Foe: Yes, but then we wouldn't have Brown either. And everyone loves Brown. You're talking about taking away Mom and apple pie, and that's unacceptable.

Originalist: No, you can keep Mom and apple pie. Originalism is compatible with Brown.


My question -- does giving originalism enough flexibility to make it compatible with Brown (for example, by beefing up the P & I clause) _also_ end up making it compatible with Roe?

Posted by: Kaimi | May 13, 2005 2:52:43 PM

But then why spend so much time promising palatable results? The key for originalists is to convince everyone else that it is the most legitimate form of interpretation. I don't see why they engage in debate as to whether *particular* outcomes can be reached as a way of proving that theirs is an acceptable form of jurisprudence.

Indeed, I think that the fact that Whelan himself (and RB too, by quoting it favorably) makes that statement at the very end of the article highlights this very tension. In short, methinks he dost protest too much.

Posted by: amosanon1 | May 13, 2005 2:45:51 PM

Maybe I'm missing the bigger point here (and I'm no Originalist apologist in general), but I think Randy's post does make the point you've suggested is missing. He doesn't say it himself, but quotes it from Whelan's article, which is the inspiration for his post.

"Whelan ends his essay on a similar note: 'The legitimacy of originalism as the only proper method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law and does not depend on the results that originalism yields.'"

Posted by: jp | May 13, 2005 2:33:07 PM


I'm not taking a position on whether Brown would have been achieved through originalism. Perhaps it would have been. But from the originalist perspective, the outcome of Brown is not a good reason to either accept or reject originalism. Originalists seem to be saying, "Don't worry, you can be an originalist and still have Brown! So c'mon over and don't be scared!" For an originalist (or anyone else, I think, but particularly for originalists, who spend so much time attacking results-oriented judging), that's putting the cart WAY before the horse.

Posted by: amosanon1 | May 13, 2005 11:48:59 AM

I'm not Randy, but I think that the smart originalist says something along these lines:

"The end result would have been achieved anyway. Perhaps through a beefed up reading of the privileges and immunities clause. Perhaps through legislative channels, when public unrest demanded it. But, just because originalism wouldn't have led directly to Brown, does not mean that originalism would result in schools still being segregated in 1990 or 2000."

I'm not an originalist myself, and I may be missing components of the argument. I have my own disagreements with it -- in particular, I think that timing does matter, and the timing of Brown might not have been achievable in an originalist world -- but it is an intellectually coherent position, that ultimately provides a pretty acceptable end solution.

Posted by: Kaimi | May 13, 2005 11:43:03 AM

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