Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
In the past, I have discussed the justification for originalism that the original meaning of the Constitution is the law. Under this positivist view, originalism is the law and and therefore one can make a normative argument that the original meaning should be followed. I have expressed skepticism about this argument: my tentative position is that the law allows, within significant limits, both originalism and nonoriginalism.
Steve Sachs has a new paper out that attempts to develop the positivist originalist argument further. In The “Constitution in Exile” as a Problem for Legal Theory, Steve in part responds to my post questioning this positivist argument:
On its face, the jurisprudential objection is quite plausible. It has even persuaded some originalists. Michael Rappaport, for example, straightforwardly defends originalism as a “desirable” reform program, rather than as a consequence of “following the law.” He notes that “people are in jail in the U.S.—lots of them—for violating laws that are inconsistent with the Constitution’s original meaning,” and that “nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.” In this context, “[w]hat does it mean to say that the Constitution’s original meaning is the law?” More generally, “[w]hat does it mean for something to be the law, if the legal system is not enforcing it?”
Steve’s paper is excellent and I strongly recommend it. The paper contains all types of interesting insights from which I learned quite a bit. But in the end the paper does not really move me any closer to the view that the original meaning is the law under positivism.
(As an aside, I should note that my position is not, as Steve suggests, merely that originalism should be justified as a desirable reform. For a discussion, see here.)
In much of the paper, Steve is concerned merely to rebut the argument that simply because judges are regularly enforcing nonoriginalist rules means that the law is nonoriginalist. He argues that one can have nonoriginalist rules enforced even though originalism is the law. 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 a powerful example and may very well show that widespread actions that are accepted by a legal system could be unlawful in some wider sense even though they are accepted as lawful. Steve attempts to justify this example based on a more general approach. He argues that under the legal reasoning accepted in the United States, when there is a conflict between higher and lower norms, the higher norm takes precedence. In the prior example, the higher norm is “do not eat creatures that feel pain; the lower norm is “lobsters may be eaten (because they do not feel pain).”
I have a lot of sympathy for this argument (although I am not certain it is correct). But I have two reservations. First, I think it oversimplifies matters to say that the law in that society prohibited the eating of lobsters. The legal system actually allowed the eating of lobsters. The law that led to that result involved a mistake and had the mistake been revealed a different result would have occurred. So in a way the law allowed the eating of lobster and in another way it prohibited it.
Second, but more importantly, Steve imagines that something like this argument would apply to justify originalism. The higher norm would be “follow the original meaning of the Constitution”; the lower norm is “provision X has a meaning” (where X turns out not to be the original meaning). But I believe that the case of originalism is different than the lobster case (as Steve himself recognizes).
In the next week, I plan to discuss this issue in one or two more posts.