Apologizing For Originalism

When debating the merits of originalism as a theory of constitutional interpretation, it's all the rage to talk about whether originalism can support the decisions in canonical cases like Brown and Loving. Thus, in a recent VC post Ilya Somin discusses the debate about whether the original meaning of the Fourteenth Amendment bans anti-miscegenation laws. Somin says that "the debate over whether such laws are compatible with originalism has broader significance for the debate over originalism itself." See also Professor Calabresi's article offering originalist justifications for Brown. 

In the views of so many, it matters whether originalism can lead to the same positive outcomes. But I don't see how it does. So far as I can tell, the greatest benefit of originalism is that it's tied to some concrete, substantial, and, most importantly, predictable method of deciding constitutional disputes. As Scalia is always saying, originalism helps to remove from the judge's hands the outcome of a case. That way, the outcome is (at least ostensibly) less driven by the outcome the judge desires.

Why, then, do we judge originalism based on the results it could or could not have produced? 

That whole line of inquiry is a red herring. If originalists cared what outcomes their interpretational theory produced, they wouldn't be originalists--they'd be functionalists. By even having these could-originalism-have-produced-Brown? debates, originalists lend credence to that mode of thinking.

Originalists will have to content themselves with the belief that their theory is correct because it leads to settled, predictable outcomes, even when those outcomes are not particularly palatable. For everything else, there's democracy.