The coming flip-flop in constitutional theory

My prediction that originalism will fade away has received cogent responses from Larry Solum, Michael Ramsey, and Jack Balkin. When I can find the time, I will respond to them. I do want to clarify that I am, in effect, treating all of us law professors as endogenous to larger social and cultural forces rather than (as we prefer to think of ourselves) as autonomous agents. I’m not making arguments on the merits of originalism and its competitor theories (whatever “merits” might mean in this context). And while I could be wrong about those forces, this is the terrain on which the debate should take place (and for that reason, Jack Balkin’s post is most directly responsive (but in brief response to him, I mean by originalism the legal-intellectual movement asserting what he calls a “comprehensive theory of constitutional interpretation” associated with Scalia’s ideas and not, for example, episodic examinations of the text in light of historical context when precedents run out, which is hardly new or distinctive. I’m also talking about the near-term, let’s say, a horizon of ten years, not forever.)). But I had some other thoughts, albeit along similar lines, that I wanted to jot down first.

Suppose that President Obama or his successor, if a Democrat, nominates and manages to secure the appointment of a (very likely) moderate liberal justice. We will now have, for the first time in decades, a clear 5-4 liberal majority. How will this change constitutional theory, by which I mean the work product of constitutional law professors?

First, the various theories of judicial restraint (that is, deference to precedent) advocated in recent years by a number of liberal law professors will instantly lose their appeal. Judicial restraint would simply consolidate conservative precedents at a time when liberals finally have the opportunity to reverse hated decisions like Citizens United and Heller. Look for a revival of Elyish theories that claim that the political process fails women, gays and lesbians, African-Americans, criminal defendants, poor people, and other vulnerable minorities (or, in the case of women majorities). Look for more arguments, adumbrated by essays in this book, that liberal or progressive values have been incorporated into constitutional norms via historical, sociological, and intellectual processes. (The authors of the book may have been unduly pessimistic, from their own standpoint, in picking 2020 as the year of constitutional change.)

Second, while I have no doubt that some constitutional law scholars committed to originalism will continue to write in this vein for the time being, look for a gradual shift in the center of gravity in conservative scholarship to judicial restraint. The explanation is symmetrical with my first point. Judicial restraint will help preserve the gains in conservative constitutional law—including the creation of gun rights, the expansion of speech rights, the erosion of protections for criminal defendants and minorities, and so on—at a time when a liberal majority will reject all efforts to advance the conservative legal agenda. By contrast, it is possible that a new moderately liberal swing justice will hesitate about sweeping aside recent precedents if persuaded that radical change would do significant damage to the court’s reputation. It is easy to imagine a moderately liberal justice voting to cut back on Citizens United but not, say, Heller, just as O’Connor and Kennedy drew the line at Roe. Ambitious conservative legal scholars might get a hearing if they drop their commitment to originalism and make arguments based on the small-c conservative values inherent in respect for precedent, or, more creatively, argue that religious people should be designated a suspect class because they are vulnerable to discrimination.

Will constitutional law professors really turn on a dime? Certainly not all of them. A flip-flop at the level I am discussing can occur through selection effects rather than individual changes-of-mind. This is an opportunity for conservatives, particularly younger conservatives, who have not staked their reputations on originalism, and likewise in the other direction for liberal scholars who have not committed themselves to judicial restraint. My arguments might sound cynical, but I have history on my side.