Now that Justice Kavanaugh is confirmed we can expect a spate of articles saying that the new majority on the Supreme Court will cause the sky to fall.
Earlier this month, I had the distinct honor of appearing on a panel (alongside John McGinnis and Charles Kesler) at a terrific conference sponsored by the Jack Miller Center and the Lynde & Harry Bradley Foundation. Our panel topic was, “Exploring Originalism.” This slightly edited transcript of my remarks appears with the sponsors’ kind permission.
I propose to explore originalism as ideology. What I mean by “ideology” is not partisan commitment but the original, Hegelian meaning: an idea whose progenitors deny, or cannot bring themselves to reflect upon the contingent conditions of that idea’s origin or creation—a thought or theory that parades around as timeless truth, as opposed to recognizing that it is a child of its time. In my view, originalism has been way too ideological in that sense. It would benefit from reflection and candor.
Originalism originated circa 1982 as a bit of a good-natured joke. Conservatives needed some respectable way of telling Justice Brennan and Justice Marshall, you can’t just make things up. “Strict construction” had failed (too Nixonian); so had Alex Bickel’s “passive virtues” (too fusty, and futile after the 1960s and certainly after Roe). Originalism looked like it might work. It seemed to offer a big tent for conservatives of all stripes and, at the same time, a program beyond partisan ideology and culture wars. This isn’t just about abortion or the death penalty, originalism seemed to be saying: we have a neutral program—a method of interpretation. Obviously, that was never quite true; but it had a certain surface plausibility.
It soon turned out that the originalist program had to be reformulated—not once, but repeatedly. Some of the reasons were theoretical; others political. Initially originalism was supposed to be about adhering to the Founders subjective intentions. That position is hard to defend as a serious theory and, worse, seems to be saying that Brown v. Board was probably wrong. Michael McConnell solved that latter problem in a famous article; and originalism migrated to a theory of “original public meaning.” That position is still au courant. But it, too, has been modified—again, for a combination of political and theoretical reasons. As for politics: in academic precincts, there must be a right to same-sex marriage if you want to remain part of the conversation. And there is, Steven Calabresi and other noted originalists purport to have shown: right there in the Fourteenth Amendment. Other originalists have been cagier, although I wonder how long that can last.
On a more theoretical note, straight-up “public meaning” interpretation isn’t how we do constitutional law, most of the time. We can’t do it that way because the Constitution isn’t written that way and so not meant to be understood that way. The document doesn’t partake of the prolixity of a legal code; all too often, the text just gives out. At that point, many originalists now say, we may legitimately do constitutional “construction.” Some contributions in that vein (like Keith Whittington’s) discuss things that actually happened, like the New Deal; but most read like they were co-authored by Ronald Dworkin and your general contractor. Many are obviously intended to shore up supposedly originalist foundations against liberal attacks of the “what about gay marriage” variety. You do this by entering originalism’s “construction zone,” and don your hard hat.
This is not to say that originalism is the work of partisans and opportunists. (If anything, academic originalists take their theories way too seriously.) It is to say, though, that originalist methods that don’t fit the demands of the times will die on the vine, regardless of the deep insights of linguistic theory.
Serendipitously, the selection process has produced some good. John McGinnis and Mike Rappaport now defend “original methods originalism.” If I understand it right, it means that we can and should read the Constitution with the aid of interpretive canons and the legal understanding of that time, because that is what the authors would naturally have assumed. I take that to mean that we can and should go about this business the way Hamilton and Marshall & Co went about it—even though they, unlike many of our originalists, had never heard of Ludwig Wittgenstein; could not (for lack of computers) perform the linguistic data-mining that is now the frontier of originalists’ endeavors to discern “public meaning”; and in these and many other regards were manifest idiots. I do wonder, though, why it took 35 years to re-discover that sensible approach, and whether the rivers of ink that have flown in the interim by way of methodological, meta-theoretical disputation have been worth it.
If you over-invest in one thing, you are bound to under-invest in another. Obvious example: if you cannot connect semantic theories to a substantive theory of the Constitution and of constitutional politics, you will miss something important. There are good reasons why M’Culloch v. Maryland starts with a disquisition on the nature of the union—not on the original public meaning of “bank,” or “incorporation,” or “necessary.”
Another crucial thing we have under-invested in is constitutional doctrine. By doctrine, I mean abstract-concrete rules, derived from and traceable to the Constitution and warrantable by it; but not by some mechanical method of interpretation or for that matter construction. The rules are abstract in the sense that they don’t respond to constituency demands or transient perceived needs; they are fairly general ordering rules. They are concrete in the sense that they provide rules of decision for a recurrent set of legal and practical questions, where the Constitution itself doesn’t quite give you an answer.
Constitutional law, in real practice, is 90 percent doctrine—an anti-delegation doctrine, an Ex Parte Young doctrine, a sovereign immunity doctrine (inferred, by originalists no less, from a “silent postulate” of the Constitution against its explicit text), a federal preemption doctrine (with four parts), a dormant Commerce Clause doctrine (also with four parts), and so on ad infinitum vel nauseam. Those doctrines serve to make the Constitution work as well as it will. You cannot derive or improve them through garden-variety interpretation. You have to ask different questions: What is the real-world concern to which this doctrine was or is supposed to be the answer? Where did it come from, and how did it develop? How well does it work, by way of giving constitutional structure and content to our politics?
Some bona fide originalists do amazing work like this—Aditya Bamzai, Caleb Nelson, John Harrison (the University of Virginia school of originalism, which is where they all teach). And you can find like-minded scholars Stanford (McConnell), Chicago (Baude), Duke (Sachs), even NYU (Epstein). But to many originalists who are invested in the label, all this sounds too loose, too common law-ish (and at least to the early originalists, that was the enemy: common law thinking). Whenever doctrine rears its head, many originalists retreat into clause-bound textualism, grim formalism, and legal positivism—anything that looks like interpretive “method.” Justice Scalia often made that move (too often, to my mind). John Manning, Jonathan Mitchell, and other scholars make the same move all the time and out of conviction—even as equally credentialed originalists move in the opposite direction of constitutionally commanded transgender bathrooms. Yet other determined originalists flee into semantics. (Pity if you’re just a constitutionalist, and woe to you if you doubt the method that produced the outcome either way: thou must be the right kind of originalist.) As a result we have become as creative in multiplying originalisms as Bill Brennan was in cranking out new rights, and the meta-theoretical ground has proven no safer or more neutral than actual constitutional argument.
I fear that this has become a real-world problem, especially for the Supreme Court. Regardless of the exertions of academic originalists, no one in the real world continues to believe judicial originalism’s claims to neutrality. And when judges then try to re-vamp or re-create credible constitutional doctrines (in a heated political environment), it looks like they are making things up. The enterprise would look, and would be, more candid and credible without the methodological razzle-dazzle.
To start with an easy example, the re-discovery of the Second Amendment was supposed to be an originalist victory: hurrah for the text, at long last. But it cannot possibly mean bazookas for the deplorables, or machine guns for nutcases in crowded places. The right to bear arms needs some halfway coherent doctrines, just as does freedom of speech. That point should have been obvious at the front end. Instead, the Court’s originalists stomped their feet on the text, and the High Court has since let the lower courts flounder around. The predictable result has been a series of tactical adjustments to shifting political demands and sensibilities, accompanied by partisan agitation and academic-originalist disputes about the true and correct semantic method that will yield the true and correct original meaning of “arms” and “bear.”
A far more consequential example: the separation of powers, and the “unitary executive.” We were supposed to celebrate Chadha (the “legislative veto” case) and we weren’t supposed to question the “unitary executive” because President Reagan and his Justice Department fought it and, more important, because it wasn’t just a theory or doctrine but came directly from the Constitution’s text: it vests the Executive Power, all of it, in a President. That uncompromising position makes it hard to entertain second thoughts about presidential government, as many serious people now do; or to put the “unitary” piece of the puzzle together with an executive state that’s obviously out of control. (This may help to explain conservatives’ absurd fixation with administrative law doctrines that probably do not matter all that much. Call it Auer originalism.)
A final example: the Supreme Court, emphatically including its conservative-originalist wing, operates with federalism doctrines and dice-loading canons that were fabricated from whole cloth during the New Deal. They are mostly calculated to preserve federalism’s “balance”—a notion nowhere to be found in the Constitution, and antithetical to it—and to protect the “states as states” against Congress. That is not a good way of understanding what’s going on between red and blue state blocs, or between them and the feds. Re-thinking this universe, however, would require serious thought about the constitutional structure and a wholesale doctrinal revamp—and no individual clause or interpretive method offers refuge or cover. And so, no.
You cannot get back to substantive constitutional argument so long as you’re chasing the mirage of a timeless Constitution above all politics. To my mind that program has lost a great deal of traction. Perhaps more important, though, it’s perversely anti-originalist: the Constitution was not meant to be read or used that way.
Allow me a McGinnis/Rappaport move: among the canons John Marshall knew very well was that the nature of the instrument tells you how to read it. The Constitution was written to be adapted to the varying crises of human affairs, by way of doctrines that make the instrument work under radically changed conditions—even as the Constitution itself remains the same. It is hard to see how that could not be a politically charged affair; and in fact, it is meant to be. The Constitution’s structural provisions, as well as its rights provisions, attract political constituencies, which might as well act accordingly and are expected to do so. There is nothing untoward about it—quite the opposite: this is what constitutionalizes our politics. That’s a good thing. A Constitution that’s no good for anyone in the real world soon will be truly dead.
A final thought: the originalist impulse to de-politicize the Constitution isn’t new; it is inherited from the most wretched traditions of American jurisprudence. The capstone course for law students who want to go places is called Federal Courts. It says, in the canonical textbook originally published in 1954 and taught to this day: we have a method, called Legal Process, that is above and beyond politics. Politics is too contentious: it might involve Republicans. And first-order questions about the powers of Congress have mostly been settled, have they not? We should simply ask, what institution is best qualified to make this or that decision—and surely, we can all agree on that. In the course of teaching my students the difficult Federal Court mechanics, I try to impress upon them how deeply ideological this whole enterprise actually is. It was invented by hard-core New Dealers. It screams at you, Franklin Roosevelt. And the answer to the question (who is best qualified to decide?) is always, an administrative agency, with an occasional friendly assist by the Court.
This is what originalism’s founders imbibed in law school, at the absolute nadir of American jurisprudence. They rebelled against it by way of creating something like Legal Process with a minus sign: we have a better method that will be really neutral and take the politics out of constitutional argument. Ever since, too much originalist theory has been an increasingly exquisite refinement on methodological margins.
That project has been serviceable and, in some ways, stupendously successful. But it cannot be the be-all and end-all of serious constitutional argument. And once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.