There are three principal grounds for justifying originalism: (1) Interpretive: the original meaning is the actual meaning of the Constitution; (2) Normative: following the original meaning is normatively desirable, where the normative desirability might be social welfare or justice or popular sovereign choice; or (3) Legal: the original meaning of the Constitution is the law (the “Legality Argument”).
In the past, I have expressed skepticism about the Legality Argument, noting that the jails are filled with people who violated statutes that conflict with the Constitution’s original meaning. Instead, I have argued that the rule of recognition in the United States allows to a significant extent both originalism and nonoriginalism as to constitutional interpretation. While one can argue that originalism is legal, one cannot argue that nonoriginalism is illegal. (But for some possible qualifications or alternatives to this view, see here.)
Recently, I have encountered some arguments where advocates of the Legaility Argument criticize normative arguments for originalism on the following ground. Normative arguments, such as the claim that following the original meaning will lead to good results, are problematic because they suggest originalism is about law reform. But originalists – historically especially – have argued that the original meaning should be followed, not because it will improve the law, but because it is the law.
This argument, however, does not work.
1. One problem is that, so far at least, the Legality Argument has not been established. No one, as of yet, has made a strong case for concluding the original meaning is the law. (In fact, I am not sure anyone has even tried in an extended article.)
If the Legality Argument is not established (and my view above is followed), then there is some kind of discretion as to whether judges are required to follow the original meaning. They seem to have a choice between originalism and nonoriginalism. How then does one attempt to influence how judges should decide constitutional cases? One significant possibility is with normative arguments.
First, one might argue that the rule of recognition allows for discretion of this sort to be resolved through normative arguments. This would avoid the criticism of normative arguments being about law reform, because the law would require (or at least allow) normative arguments to be made to clarify it. In other words, the normative arguments would be part of the law.
Second, one might deny that the rule of recognition contemplates that normative arguments will resolve the dispute. But one might still make normative arguments on the ground that the law does not resolve the matter and therefore one must go outside of the law to make a decision. This argument would again, avoid the criticism of normative arguments being inappropriately about law reform, because there would be no alternative legal way of resolving the question.
2. Another way that one might avoid the criticism of originalism as law reform is to make a normative case for originalism as the law. One might argue that the Constitution ought to conform to the rule of law in the sense that the law ought to be clear and limit the discretion of government officials. Originalism would supply such a rule of law, but the living constitution would not. Under this view, then, the original meaning of the Constitution ought to be the law because living constitutionalism does not really supply a law worth its name. This is not positivism. This is a kind of legal ideal – a sort of natural law thinking, if you will.