Originalism must construct rules of precedent that mediate between the value of following the original meaning and the value of constitutional settlement.
I am grateful for Michael Greve’s post on my analysis of Our Two Supreme Courts. I wholly agree with his positive point. The political or aristocratic Court comes to the fore not only in constitutional cases, but in statutory interpretation cases that implicate constitutional values or important political issues. Preemption is a fine example because the broader is the scope of preemption, the more limited is the authority of the states.
I am in less agreement with his normative point. I had argued that the way to dissolve the difference between the legal and the political court was for the Court always to take the same formalist approach that it does in ordinary statutory cases, like interpreting the bankruptcy code. Michael doubts that such formalism is regularly possible in constitutional law because of the open ended nature of constitutional provisions. But Mike Rappaport and I have argued previously that the common claims that constitutional provisions are abstract and need to be filled in by judges may well be false. Once we know more about their history, we can often determine a clearer meaning of the constitutional provision at issue. The Bill of Rights was a case in point: these provisions did not express abstract natural rights but encompassed the rights of Englishmen at the time of our Constitution—rights that had a relatively determinate meaning. Moreover, Mike and I believe that legal methods of interpretation at the time of the Framing can also help reduce vagueness and uncertainty.
Even after the application of these methods some uncertainties may remain irreducible but the Court has far to go down the formalist road, before we can make that judgment. Justices Antonin Scalia and Clarence Thomas show us that more legally rigorous approach in all cases is possible and if they were joined by other originalists more progress toward creating a formalist culture of judging would be made. I agree that the high stakes in some cases may still prompt judicial willfulness, but a regulative ideal of legal formalism would do much to create one court out of two. “E duo unum” should remain our slogan for the reform of the Supreme Court.
I do wholly agree with Michael that justices should not look to what they learned in law school for methods to interpret statutes. It is indeed a horrible thought that law professors of yesteryear are the unacknowledged judges of the today! The justices should look to the interpretive methods that were expected to be applied at the time that the statute was passed, just was we look to the methods of interpretation in 1789 to help interpret the original Constitution. A common legal method for discovering the appropriate interpretive rules would be yet another sign of a unitary court.