In a new article by Gary Lawson discussing Jim Fleming’s book on constitutional theory, Lawson takes issue with a well known claim by Keith Whittington about the new and old originalism that Fleming accepts. (For one discussion of the new originalism, see here.) Whittington had claimed in 2004 that:
The new originalism is distinct from the old in that it is no longer primarily a critique of the Warren Court’s rights jurisprudence. The new originalism is more comprehensive and substantive than the old. It is more concerned with providing the basis for positive constitutional doctrine than the basis for subverting doctrine.
Thus, I think Professor Fleming gets it precisely backwards when he characterizes the new originalism as a move from anti-Warren Court tirades to a governing judicial philosophy. He has taken bad guidance from Keith Whittington, who postulated – with absolutely zero evidence that I can see – precisely such a move as the explanation for the emergence of the new originalism in the Reagan and post-Reagan years. That is the sort of thing that sounds nice to political scientists who like that kind of explanation. It just happens to be, I believe, wildly false, and indeed backwards, as an account of the emergence of the new originalism.
Lawson also writes:
The new originalists, most of whom I personally have known at least casually since the 1980s, were engaged in an intellectual rather than political enterprise.
The real move reflected in the new originalism was from originalism as a theory of adjudication and governance to originalism as a theory of interpretation and meaning. To be sure, virtually all of the new originalists (essentially everyone except me) put forth originalism both as a theory of interpretation and as a theory of governance, but new originalists generally acknowledge that those are distinct moves that require distinct lines of reasoning to defend.
In other words, the new originalists were thinking about interpretation and meaning. And in their different ways, they were focused on the most accurate reading of the words rather than the political results.
Lawson refers on page 22 of his article to a number of different new originalists, including me. In my case, I believe he is correct. I have come to carefully distinguish between discovering the meaning of the document and the goodness of the results that the document produces.
But there is more to the story. I do remember in the early 1980s encountering originalism in a serious way for the first time. Even then, before developing my views further, I do believe that I thought that meaning differed from adjudication. But I must admit that I was very skeptical of meanings that seemed uncertain (and therefore seemed to give judges discretion).
How would I have justified this view? At the time, most old originalists thought of originalism as having a core purpose of constraining judges. I don’t think that was true of me. Instead, I think I would have said that if a provision seemed open ended, such as Privileges or Immunities Clause of the 14th Amendment seemed to, it could not serve as a basis for meaning, because the judge would just bring in his own values.
But as time passed and I eventually became an academic, I became more thoughtful and careful about these matters. And I came to accept that the framers might have enacted unclear terms into the Constitution. But I also accepted two claims that allowed me to understand more about the supposedly unclear provisions. First, the more I learned, the more I realized that so called unclear terms often had more determinate meanings than they seemed to have at first. Second, I also came to accept the 51/49 view – the view that one should follow the more likely meaning of an unclear provision in close cases, and therefore even when there was uncertainty, there was often a meaning.