Friday, December 20, 2013

Holmes and the New Originalists

Justice Holmes is at leisure during the holiday recess, but I am moved to protest mildly at the manner in which he is described by a leading proponent of the New Originalism, the set of doctrines whose premise is that the text of the Constitution, as understood when it was adopted, should be applied to resolve modern disputes. Lawrence B. Solum is a prominent and articulate leader of this school of thought, and is particularly distinguished by his efforts to clarify its theoretical basis. In a recent post on his Legal Lexicon blog, Professor Solum lays out the new theory as a subset of what he calls "Formalism," a hard-minded approach to law. As applied to the Constitution, it calls for application of the rules found in that text without much regard to judges' views of the purpose or wisdom of clearly stated law. He contrasts this with "Instrumentalism," which he says is the doctrine many law professors teach, and which allows a judge to interpret laws according to their presumed purpose and likely result, rather than according to the meaning of their text.  I don't want to discuss this characterization of two dominant schools of thought, but Solum appoints Justice Oliver Wendell Holmes the father of Instrumentalism, and I do object to that. 

The late Judge Robert Bork, and Justice Antonin Scalia, both contrasted their versions of originalism with the dominant jurisprudence of their day, which considered the Supreme Court a common-law court, and analyzed the manner in which constitutional rules emerged from particular decisions. Holmes is often associated with this view, which is indeed the antithesis of the New Originalism. He is one of the founders of an historical, empirical approach to determining how rules evolve from judges' decisions in particular cases. Holmes observed that the decision comes first, and justifications afterward. Judges in his view often decided on the basis of an "inarticulate premise" not clearly stated in their opinions. Later investigations of the way in which judges in practice decide cases are lumped together under the rubric "legal realism," which soon departed from Holmes's views, but that is another story. 

Holmes's jurisprudence was indeed founded on a theory, one he claimed to have derived from empirical investigation, that the only law which can be said to be enforced or enforceable is the decision of a court which authorizes the government to bring its powers to bear on particular persons. Rules to govern such decisions are derived from study of previous decisions in similar circumstances, rather than directly from the text of statutes or constitutions. Holmes did not think the opinions written by judges were good sources to look at when searching for applicable rules, it was their decisions in particular circumstances which mattered, and gave meaning to rules. Neither Holmes's historical studies nor his search among established precedents produced a theory of textual interpretation like the one Solum refers to as "Instrumentalism." Quite the contrary, the common-law tradition with which Holmes is properly identified searches for enforceable, constitutional rules in another place entirely, in the "body of precedents by which we are bound. . . ." Olmstead v. United States (1928) (Holmes, J., dissenting).