Proponents of originalism assert that courts should interpret constitutional provisions in accordance with the public meaning of those provisions at the time of their enactment.2Id. at 1251. Originalist proponent Randy Barnett distinguishes between “old originalism,” which was the idea that the Constitution should be interpreted in accordance with the “intentions of the framers,” and “new originalism,” which is “premised on determining the original public meaning of . . . the Constitution.” Randy E. Barnett, Welcome to the New Originalism: A Comment on Jack Balkin’s Living Originalism, 7 Jerusalem Rev. Legal Stud. 42, 43–45 (2013). For the purposes of this Note, I use “originalism” to mean “new originalism” (that is, public meaning originalism). One criticism of originalism is that if the Supreme Court were to faithfully apply the theory, such application leads morally unjustifiable outcomes.3Cass R. Sunstein, Second-Order Perfectionism, 75 Fordham L. Rev. 2867, 2880 (2007) (noting that a “central objection to originalism is that it would produce morally unacceptable outcomes”). This criticism has two components: (1) had the Supreme Court subscribed to originalism as its interpretive method in the past, then certain outcomes, such as the banning of racial segregation in public schools in Brown v. Board of Education,4Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (finding statutes of several states requiring racial segregation in public schools to be a violation of the Fourteenth Amendment). would not have occurred;5See Ronald Turner, The Problematics of the Brown-is-Originalist Project, 23 J.L. & Pol’y 591, 593 (2015) (stating that “[t]he Brown Court did not employ originalism”); Michael W. McConnell, The Originalist Case for Brown v. Board of Education, 19 Harv. J.L. & Pub. Pol’y 457, 457 (1995) (noting that major constitutional and legal scholars such as “Alexander Bickel, Laurence Tribe, Richard Posner, Mark Tushnet, Raoul Berger, Ronald Dworkin, and Walter Burns” have concluded that Brown is inconsistent with “the original understanding of the Fourteenth Amendment”). Although McConnell concurs that many scholars find the result in Brown incompatible with originalism, he disagrees with such scholars and argues in his article that Brown can be justified under an originalist approach. Id. passim. and (2) if the Supreme Court employs originalism in the future, the Court might issue rulings contrary to contemporary moral sensibilities.6For example, the Court might let stand a state law prescribing flogging or lashing as a form of criminal punishment. See Craig S. Lerner, Justice Scalia’s Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism, 42 Harv. J.L. Pub. Pol’y 91, 112–14 (2019). Moreover, some critics of originalism maintain that when confronted with this problem, proponents of originalism deny that its application would lead to those outcomes and stretch the theory’s meaning beyond its capacity for any meaningful constraint on interpretation,7See Turner, supra note 5, at 596 (arguing that originalism cannot be said to “meaningfully constrain interpreters who are and remain free to fashion and shape the methodology in ways that yield a Brown-is-originalist conclusion”). or, alternatively, they admit that they would find the morally objectionable practice unconstitutional, even if such holding would be inconsistent with the originalist method.8See id. at 627. Thus, the claim is that originalists are “faint-hearted;”9See id. at 626 (quoting Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989)). that is, they either tailor the definition of originalism to conform to morally required decisions or abandon originalism when it is too much to bear.10Michael C. Dorf, Equal Protection Incorporation, 88 Va. L. Rev. 951, 958 (2002) (stating that originalists “concoct implausible accounts of the Reconstruction Era understanding of segregation” to reconcile originalism with Brown). This, critics of originalism assert, indicates that originalism is not viable as a constitutional method and should be abandoned, some argue, in favor of living constitutionalism.11See David A. Strauss, Do We Have a Living Constitution?, 59 Drake L. Rev. 973, 978 (2011) [hereinafter Strauss, Do We Have a Living Constitution?].
This Note will demonstrate the flaws in the above argument. The argument is flawed, not because it can necessarily be proven that originalism leads to more morally justifiable results than living constitutionalism, but because living constitutionalism lacks a definitive prescriptive claim to make such a comparison between the two theories possible. That is, it is impossible to identify past or hypothetical future outcomes of cases as being consistent or inconsistent with living constitutionalism. Moreover, because it is possible to do so with originalism, and thus, posit how implementing originalism could lead to morally undesirable results, living constitutionalism has an illusory moral superiority over originalism.
