[Ilya Somin] Originalism, living constitutionalism, and outrageous outcomes

Harvard Law School Professor Cass Sunstein, one of the nation’s leading constitutional theorists, recently wrote a column arguing that consistent application of originalism might lead to a variety of “intolerable” results:

1. States can ban the purchase and sale of contraceptives.

2. The federal government can discriminate on the basis of race — for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.

3. The federal government can discriminate against women — for example, by banning them from serving in high-level positions in the U.S. government.

4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.

5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.

6. States can establish Christianity as their official religion.

7. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.

Originalist legal scholar Michael Ramsey offers a strong response. As he points out, leading originalist legal scholars have offered a variety of arguments explaining why originalism does not in fact require these outcomes. Moreover, most versions of originalism incorporate deference to at least some long-established precedents that might have been wrong as an original matter.

With respect to Sunstein’s seventh example, Ramsey notes that it would not in fact be an “intolerable” result for the federal government to leave many local pollution issues in the hands of state and local governments. Many federalism scholars – myself included – argue that that would actually lead to better and more efficient policy, as well as more consistent with the text and original meaning of the Constitution. We could be wrong about this. But it is not an “intolerable” or unreasonable position, and is certainly well within the mainstream of modern thought on federalism and environmental policy.

Another problem with Sunstein’s argument is that it could easily be turned against living constitutionalism no less than originalism. Most versions of living constitutionalism give judges broad scope reinterpret the Constitution in order to address modern social needs. Many of the results Sunstein fears originalism might produce could easily be rationalized as necessary responses to changing social conditions.

For example, a living constitutionalist might believe that a religious revival could help alleviate a variety of modern social pathologies, and that state promotion of Christianity could aid in that process. If so, perhaps we should indeed let states establish Christianity as an official religion and otherwise promote its spread. A recent survey found that almost a third of the public believes that “being Christian” is a “very important” part of “being truly American.” Living constitutionalist judges who feel the same way could readily decide that we should overrule or at least greatly narrow precedents constraining state promotion of Christianity.

Similarly, a living constitutionalist could conclude that, under modern conditions, racial, ethnic, and religious profiling is an essential tool for combatting crime and terrorism. Therefore, we should loosen or even eliminate constitutional restrictions on discrimination by law enforcement. They could also cite social science studies suggesting that ethnic diversity reduces social trust and social capital, and thereby conclude that states should be given a freer hand in promoting racial and ethnic segregation. This latter possibility actually has historical precedent. In the early 20th century, Progressive living constitutionalists did in fact argue that the state and federal governments should be allowed to engage in extensive discrimination in part based on supposed scientific evidence indicating that it would alleviate various social pathologies.

Sunstein’s fifth example is vulnerable to the objection that most living cons