Selective Originalism. Why do Originalists Pick and Choose When to be Original?

October 28th, 2009

Professor Balkin makes a fantastic point. If Scalia were truly an originalist, he would not be able to adhere to Bolling v. Sharpe and Loving v. Virginia.

I’m sure if someone ever cornered Nino, he would say something about stare decisis, and following these precedents. I once asked him a similar question about how he affirms all of the Criminal Procedure cases from the Warren Court which are patently unoriginal, and he muttered something like “Nah, its water under the bridge.”

But when is it water under the bridge? And shouldn’t stare decisis be weak for Constitutional Law. Scalia has called himself a “faint hearted” Originalist. What exactly does that mean?

The normative appeal (to me at least) of originalism is an an attempt at objectivism. That is, making the judicial resolution as much as possible about objective facts (history) and as little as possible about a judge’s personal predilections. Deciding when to be an originalist seems to give a judge a lot of discretion. This is similar to finding when a statute is ambiguous, or if a previous opinion is holding or dicta, a topic I have written about here.

This is a topic I’ve been thinking about for some time.  I call it Selective Originalism. It is similar to Selective Amnesia. Originalists pick and choose when to forget about the history behind the Constitution with respect to certain issue and cling to stare decisis (e.g., Brown, Bolling, and Loving) but are dogmatically clingy to it with respect to other areas and ignore stare decisis (e.g., Scalia on Roe/Casey)

Further, why do originalists seek to be originalists in some areas (guns, federalism, confrontation clause), but not in others (criminal procedure). Is this Hypocrisy? Water under the bridge?

Further, if Bolling v. Sharpe was wrong, Aderand would be wrong.

Perhaps one way to reconcile this comports with a Presumption of Liberty. When an unoriginalist opinion promotes liberty (the exclusionary rule, the right to keep and bear arms, confrontation clause rights), it is OK to ignore the history, and just say stare decisis. But what happens when an unoriginalist opinion infringes on liberty? More to come.