Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote:
To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues, one might conclude that even though the people in the society believe that eating lobsters is lawful, they are mistaken.
This is an important example, but it is not clear that it can be used to argue for originalism. The question is how similar this example is to the current situation involving nonoriginalist judging. Let’s analyze a couple of different situations.
1. A Mistake: In Sachs’s example, the judges make a mistake. As a result, pretty much everyone – those who believe in the principle of not eating creatures that feel pain and those who believe that lobsters do not feel pain – would acknowledge, once the mistake is corrected, that the lobsters should not be eaten.
If judges were making a mistake about their interpretations – if nonoriginalist judges thought their decisions were actually the original meaning but were mistaken about that – then this situation would be comparable to the lobster example. But, as I argue below, most nonoriginalist judges do not mistakenly believe that they are following originalism.
2. Open Contestation: Now consider the opposite extreme. Nonoriginalists come right out and acknowledge that they are not applying the original meaning. In this situation, it is clear that the rule of recognition does not require originalism. Instead, it allows both originalism and nonoriginalism since decisions are written openly from both perspectives.
3. Silence as to the Original Meaning: Not let’s move to the situation which may reflect the reality of American law. In this situation, most judges do not accept originalism, but they do not acknowledge that in public or in their opinions. This is neither exactly like the mistake (or lobster situation) in scenario 1 nor like the open contestation of scenario 2.
What is one to say about this situation? One take is that this is much more like the open contestation than the mistake scenario. The reason is that it all judges and most lawyers know that large numbers of judges do not believe in originalism. Thus, it is common knowledge that originalism is not accepted generally among judges and this suggests that originalism is not required by the rule of recognition.
Of course, one might disagree with this argument. The rule of recognition is what everyone agrees with – or at least what is not criticized as unlawful by the relevant officials. But decisions that claim not to follow the original meaning arguably do not fall within this category. One cannot say that people agree with such decisions, since there aren’t any, and we do not know that such decisions would not be criticized as unlawful.
While this argument has some merit, it does not establish that nonoriginalism is not the law. It merely establishes that decisions that openly claim not to follow the original meaning are not the law. It does not establish that decisions that simply (or silently) do not follow the original meaning are not the law.
Now one might respond that there is a norm against such silent actions, but that is hard to claim, because that is what has been going on for a long time. But even if that were the case, this would not stop nonoriginalism. First, nonoriginalist judges are probably not unwilling to say that they follow precedent despite a contrary original meaning. Second, even in cases where there are no precedents, nonoriginalist judges often have moves that allow them to ignore the original meaning. For example, the recent Recess Appointments decision in Noel Canning – where there were no Supreme Court precedents – illustrated two of these. Justice Breyer claimed that the original meaning was ambiguous by relying on a very capacious understanding of ambiguity. (More generally, nonoriginalist judges could often claim that the original meaning is not clear by adopting a strict standard for establishing the original meaning.) He also claimed that practice was important in determining the meaning of the Constitution.
Thus, there are significant techniques that nonoriginalists can use to decide cases according to nonoriginalism without expressly claiming that they are not following the original meaning.