Richard Primus has graciously clarified his claim about originalism. It is not that many originalists believe it has never been tried in simple sense. Instead, “in the context of my initial post, ‘never-been-tried’ is a shorthand for something like ‘not yet conducted with sufficient persistence and proficiency so as to let its record of conduct stand as a fair test of what the theory can deliver if carried into practice properly.’ ”
I don’t entirely agree with this narrower claim and I don’t think most other originalists would either, but it is a more interesting question. There are two parts to my demurral. Richard focuses on testing the question of whether originalism constrains decision makers and creating stability. Constraint and stability are not for me the chief advantages of originalism. Nor are they for such varied theorists as Randy Barnett, Keith Whittington, or Jack Balkin. And I am not sure the advantages that these theorists emphasize are reducible to an empirical test through case law. Mike Rappaport and I, for instance, have suggested that the original meaning of the Constitution is likely beneficent by other kinds of arguments. In short, there other justifications for originalism and other ways of making these justifications plausible than empirical review of cases . Originalism can be evaluated in other ways.
A more direct disagreement is that I think there has been enough practice of originalists to suggest, although not prove, that originalism does lead to substantial, albeit not perfect, constraint. Let me set aside the more distant past which was the subject of a prior post. In recent times Antonin Scalia and Clarence Thomas were the most consistent adherents of originalism and not coincidentally they agreed in about ninety percent of cases.
To be sure, such pairwise agreement statistics are but an imperfect measure of the constraint of a methodology. This metric includes statutory as well as constitutional cases and constitutional cases that turn on precedent as well as original meaning. But nevertheless the statistic accords with my sense that Justices Scalia and Thomas agreed very substantially on the Constitution’s meaning. (It would be good to look at this question in greater depth than this blog post permits). And their agreement cannot be explained away, like those of some other justices, simply as ideological agreement. Particularly, in criminal law cases, Scalia and Thomas not infrequently vote together against the position that political scientists would code as conservative.
Richard suggests that Heller where all opinions inquired into original meaning, but where the justices were nevertheless split 5 to 4 may count against the claim that originalism constrains. But most, if not all of those in dissent, had said at one time or another that they were not originalists. I think it is fair to count the performance of those who claim to be originalists more heavily in determining the success of originalism than those who by their own admission are not committed to the methodology but may use use it for the sake of argument. The devil can quote scripture too.
Certainly, the high degree of agreement between Scalia and Thomas on constitutional meaning is not conclusive proof of originalism’s constraint. But, as with other objectives claimed for originalism, direct proof is not the only way to make out the claim for constraint. Originalists argue that considering the empirical facts of historical meaning offers more constraint than considering values, which are subjective, or consequences, which justices are poorly institutionally equipped to evaluate. Richard may well disagree with these arguments too but they are not generated by an empirical review of Supreme Court cases but by more general assessments of the way the world works.
No doubt the more originalist practice we have, the better we can evaluate originalism in some respects. That is yet another reason Gorsuch will be such a great addition to the Court! But we may indeed have enough practice to suggest a modicum of confirmation for propositions for which priors have been laid elsewhere.