Support for judicial philosophies often comes across as a grudging expression of the “bear principle.” That is, if you and Supreme Court justice Antonin Scalia found yourselves in the woods faced with a potentially grizzly situation, you wouldn’t have to outrun the bear; you’d only have to outrun Scalia. And vice versa.

Whether advocating for the original intent of the Constitution and its amendments to prevail, or endorsing legal evolution based on case law, doctrine, and contemporary public values, proponents often resort to a “beats the alternative” argument. Scalia referred to his preferred originalism, in the title of a 1988 lecture, as “the lesser evil.” And during a session of the Law School seminar Originalism and Its Critics, a student describing the merits of the opposing common law view said, “Maybe it’s not intellectually honest, but it’s stable.”

A few minutes later, the class discussion tilted in a pro-originalism direction. One student rejected the common law approach as a “license to disregard the text and, say, work from pre- cedent, or when you don’t like what the result of precedent demands, work from your own moral misgivings.” Or, as another put it, “freewheeling constitutional dream making.”

These critiques prompted a defense. “I think it’s only fair at this point to say it doesn’t have to be perfect; it just has to be better than originalism.”

It was the seventh meeting of the weekly two-hour winter quarter course. By then positions among the 15 students—and coteachers Eric Posner, U-High’84, Kirkland and Ellis distinguished service professor of law, and William Baude, SB’04, Neubauer Family assistant professor of law—appeared well established. Baude, an originalist, and Posner, a skeptic, sparred amiably in the classroom and in writing about the topics of each session from their respective constitutional corners.

Readings for this February afternoon focused on alternatives to originalism. The class spent the first hour analyzing a 1996 journal article, “Common Law Constitutional Interpretation,” by David A. Strauss, Gerald Ratner distinguished service professor of law and author of The Living Constitution (Oxford University Press, 2010).

Posner, who led the day’s discussion, pressed for specifics to wrestle with Strauss’s argument that the common law has become, in effect, the prevailing form of constitutional interpretation. A student pointed out how the approach involves adjusting provisions to fit modern norms, giving the example of changing social attitudes about what constitutes cruel and unusual punishment.

Some methods that the founders might have accepted have been deemed illegal through a cultural evolution expressed in case law, not constitutional amendment. “No one wants to use the rack anymore, or brand people—there’s no ifs, ands, or buts about that,” he said. “So I think that the common law constitutional people would want to say that there are things, similar to that, that we all just know.”

Posner summarized the point. “So, like a moral consensus.”

“I don’t think that can be the full account of it,” another student responded. “For the constitution to have any bite in these sort of rights disputes, the Supreme Court has to be able to render countermajoritarian decisions. We only get legislation that’s putatively unconstitutional when a majority, or a coalition elected by a majority, enacts that legislation.”

“How do you resolve this paradox?” Posner asked. “How does the law get passed if there’s a consensus against this type of punishment?”

A man raised the issue of outliers within the larger body politic. Perhaps there are state majorities that stand apart from prevailing national attitudes, “but if you look at the whole country or the whole world, then you sort of have the right idea.”

Posner equated that concept with the Margin of Appreciation Doctrine in the European Court of Human Rights. If something close to a consensus exists across the continent on a given subject, the doctrine says, a country may not pass a contrary statute.

The court held, for example, that overwhelming support throughout Europe for gay-rights marches meant that an Eastern bloc country could not prohibit such protests. Same-sex marriage, on the other hand, remained divisive enough that countries could legislate the issue as they saw fit.

Article V of the US Constitution, which establishes the amendment process, requires a de facto margin of appreciation of 75 percent—three-fourths of the states must vote in favor for ratification. Theoretically, a proposed amendment could be rejected with only about seven million people opposed, a bare majority in the 13 least-populous states. That’s just over 2 percent of the population.

Posner noted that it’s unlikely for opposition to be distributed in a way that creates such a disproportionate impact, but Article V nevertheless creates “a very high threshold.” Which the founders clearly understood and intended, he acknowledged, so what’s the problem?

In the United States, a student pointed out, the original understanding of the citizens themselves has changed since the founding. Like the French or Germans today, whose national identity supersedes any sense of affiliation with the European Union, early Americans considered themselves state citizens first. Now, Posner agreed, “there’s more of a national consciousness.”

Another reading assignment, Yale law professor Bruce Ackerman’s 2006 Oliver Wendell Holmes Lecture at Harvard on the living constitution, touched on that subject. Paraphrasing Ackerman, a student said, “The shift in consciousness led to a shift in who we think should be addressing our problems.”

For its critics, originalism suffers from judicial detachment highlighted by that shifting consciousness, a failure to give due weight to the moral and emotional concerns of contemporary politics, relying instead on dry parchment. “Let me give you an example,” Posner said. “I’m in favor of gun control, so I was talking to somebody about it and he was saying, ‘My mother lives in rural Maryland and the only way she can protect herself is by having a gun. You want to take that away from her.’ OK. What’s the argument to the Supreme Court? ‘Well, in the 18th century …’”

One student’s opposition to originalism was rooted in exactly that distance between contemporary political conflict and ideals ordained and established more than two centuries ago. Originalist concern about judges straying outside the boundaries of the text, on whatever grounds, gave him no pause. “Even in the worst-case scenario, where they’re instantiating their own policy preferences, I’d probably prefer to be governed by legal elites today than to be governed by legal elites of 220 years ago.”

Asked why, he said, “They know more; they’re closer to my values.”

Suppose the United States passed a constitutional amendment permitting same-sex marriage, another student responded. If the opposite view held sway in the 2060s, he asked, would it be acceptable “to undo that because they shouldn’t be bound by what people 50 years ago thought?”

“My point was not that I’m totally comfortable with the idea of justices just instantiating their policy preferences,” the common law advocate responded. He considered that the worst-case scenario and, on balance, still preferable. “It’s the bear problem. I think there are worse problems with originalism than there are with that.”

Syllabus

Through the nine weeks of the Law School seminar Originalism and Its Critics, students read dozens of legal opinions, journal articles, and scholarly lectures on different forms of constitutional interpretation. Coteachers Eric Posner and William Baude took opposing sides of the debate—Posner dubious about originalism, Baude supportive of it. The discussions drew similar lines among the students and teased out the distinctions between and nuances within opposing legal philosophies. Grades were based “mainly” on a 20–30 page research paper with attendance and participation factoring in “at the margin.”