Professor Thomas Davies on Selective Originalism, and my Thoughts

December 2nd, 2009

In a new article, Professor Thomas Davies has posted a new article to SSRN titled Selective Originalism: Sorting Out Which Aspects of Gile’s Forfeiture Exception to Confrontation Were or Were Not ‘Established at the Time of the Founding’ (H/T Legal Theory Blog). While I am not an expert on the Confrontation Clause or Forfeiture,

Selective Originalism” is a topic I have blogged about.

Professor Davies writes (these quotes are taken from various parts of the Article):

“Originalism” seems to have taken hold in the Supreme Court as a preferred mode of justifying constitutional rulings. That is unfortunate because, among other shortcomings, the historical claims justices make under the rubric of originalism often suffer from serious defects. One common defect is that the justices engage in selective originalism; that is, they recognize only the specific aspect or aspects of the actual historical doctrine that fit—or that can be made to seem to fit—the result they desire to reach, but they ignore or evade other significant aspects that do not.

The overall result is that Giles implements a forfeiture exception to the confrontation right that far exceeds any exception “established at the time of the founding.” The originalist aspects of Giles are so highly selective that they do not amount to honest originalism at all.

I titled this Article “Selective Originalism.” However, I hope that the preceding discussion has made it evident that that phrase is an oxymoron. Selective originalism is not really originalism at all. Indeed, although advocates of originalism often present it as a way to inject more discipline into constitutional interpretation, originalism actually has the opposite effect. At least as practicd in the Supreme Court, originalism is merely a rhetorical pretense under which justices justify their personal predilections by falsely claiming fidelity to historical meaning, while actually ignoring or altering the historical meaning.

I tend to agree with a lot of Professor Davies’s critiques of Selective Originalism. Originalists should not be able to pick and choose. In a previous post on Selective Originalism, I wrote:

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)

Though, I think there are two distinct strands of Selective Originalism.

The first strand, which Professor Davies discusses, is selectively reading the historical record to reach a desired results. I will let the historians duke out the original meaning of the confrontation clause. I know little about this topic, so I will defer.

The second strand, presents a different dynamic. In some cases, ignoring history is considered the appropriate jurisprudential tact. In this case, an originalist ignores the actual history of the Constitution in order to support precedents they think are right. In these cases, stare decisis and reliance interests counsel against overturning well-established precedents, even if they are historically suspect. It’s good to be Unoriginal. This is what Originalists must do with Brown, Bolling, and Loving (see here)

I am thinking about a possible way to reconcile this tension. I previously wrote:

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.

This topic definitely deserves more thought and consideration.