Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,” and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.
In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.” This claim is contrary to the received wisdom about Scalia. But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to the progressive transformation of the United States.
But Sunstein’s arguments are weak. First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.
Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home. First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding. Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism.
The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the judiciary, because he believes that judges have substantial discretion to construct the Constitution, even when the semantic meaning is not clear. But it does not follow that the judiciary cannot vigorously discover and enforce the meaning of provisions that might seem indeterminate to a layperson.
Judges have many tools to clarify the meaning of provisions that may seem vague, opaque, or ambiguous. The Constitution was not created ex nihilo but against a background of legal methods that help make legal meanings more precise. To decline to deploy these legal methods is to discard a valuable portion of our traditional science of law. Judges are simultaneously empowered and constrained by these methods.
As I have argued, this view of judicial duty had overwhelming support in the founding era. For instance, James Iredell, one of the first Supreme Court Justices, affirmed that judges have a duty of clarity before invalidating legislation under a constitution, whether state of federal. But he also made clear that judges use “every consideration” in forming a judgment as the meaning of the Constitution, even if this process proved “difficult.”
Justice Roberts provided an example of this process in NFIB v. Sebelius in his interpretation of the Commerce Clause.