In my previous post, I attempted to explicate the meaning of the Rule of Recognition and to explore whether that Rule might have forbidden originalism. I concluded that at least as of today, one cannot argue that originalism is forbidden. But is there also an argument that originalism is required and therefore that nonoriginalism is illegal?
I don’t think so. As I discussed in my previous post, it seems likely that Supreme Court justices are allowed to decide cases based on originalism or nonoriginalism. Thus, both would appear to be legal.
But originalists may have an ace or two in the hole. One of the striking things about nonoriginalism is that, at least as practiced by judges, it does not candidly admit what it is doing. It appears that the Supreme Court has never admitted that it is deciding a case not in accord with the original meaning of the Constitution, except to the extent that precedent (or perhaps practice) allowed an opposite result. (It is true that nonoriginalists will admit that the expected application of a provision was contrary to its ruling, but that is different from the original meaning.)
Perhaps this reluctance of nonoriginalists to admit what they are doing is important for the Rule of Recognition. Perhaps it suggests that a practice of violating the original meaning is not in accord with the Rule, which is why they are not admitting it.
Of course, one might respond that the practice need not be admitted. So long as the officials know what is occurring, that is enough for it to be accepted.
