Which came first? The originalist theory or the originalist outcome?

February 24th, 2012

Michael Ramsey has this post at the Originalism blog, asking is there an originalist case for affirmative action:

My view is that the failure adequately to explain the anti-affirmative action decisions on originalist grounds is a serious weakness in the Scalia/Thomas jurisprudence.  (I’m not saying they can’t be so explained, only that they haven’t been).  If I’m overlooking important originalist scholarship on this issue please let me know.  With the Fisher case coming up next Term, this is a good time for originalists who care about this issue to get to work.

So, it seems Ramsey knows of no scholarship that has articulated that pro-affirmative action jurisprudence is not grounded in originalism, and urges originalists to get to work finding that proof.

Isn’t this putting the cart before the horse, or the theory before the outcome? Ramsey assumes–admittedly with no knowledge–that the Thomas/Scalia cases arguing against affirmative action are grounded in originalism; just no one has done so yet. But how can he be so sure?

This leap of faith is really a microcosm of what troubles me about originalism, or at least a lot of the current scholarship about it. There is some preferred outcome (affirmative action is bad). Scholar assumes that the outcome is supported by originalism (just no one has shown it yet!). So someone writes an article–and no doubt an amicus brief making that argument. This just seems so backwards to me (and transparently so). Am I missing something?

Update: Mike Rappaport has more on this point:

Of course, Feldman has another point here.  He believes that people often use original meaning as proxies for their political views.  While he has a point here, I don’t think this is quite right. Instead, I believe the more accurate way to put it is that people with different political views often end up concluding that the original meaning has different meanings.  That is not necessarily because they are viewing the evidence in bad faith, but they are unconsciously influenced by their political biases.

Cognitive biases. I can see that.

Update 2: Michael Ramsey comments on David Gans’s originalist take on the 14th Amendment:

As I’ve noted, conservative originalists need some better arguments on the unconstitutionality of affirmative action

So, we aren’t just talking about originalists–we are talking about “conservative originalists.” That seems even more outcome-driven.