Berman and Toh on the New and Old Originalism: Part I – The New Originalism

Recently, Mitch Berman and Kevin Toh have published an article entitled “On What Distinguishes New Originalism from Old: A Jurisprudential Take.” While I don’t know Toh’s work, Berman is a well respected scholar who is a critic of originalism, having penned a widely read article entitled “Originalism is Bunk.” I like Mitch, but I have serious concerns about this new article and so I thought I would write a couple of posts about it.

The article covers a lot of ground in relatively brief space and is quite dense, but its main points can be summarized. A common theme in originalist scholarship is to draw a distinction between the old and the new originalism. The most common distinction is that the old originalism advocated original intent and the new originalism supports original public meaning. Berman and Toh argue instead that the old originalism focused on theories of adjudication – that is, how judges should decide cases – whereas the new originalism is concerned with theories of law – that is, how the law of the Constitution should be understood.

Both aspects of this claim are interesting and the assertion about the new originalism seems novel. Yet, in both cases, I think the claims are mistaken. Finally, Berman and Toh also discuss the theory that John McGinnis and I defend in our new book. I also believe that Berman and Toh mischaracterize that theory.

The New Originalism

Let me start with the Berman and Toh claim that the new originalism is defined by its focus on theories of law. This is a startling claim. While Berman has in his own work been interested in such theories, that is not how new originalist theories have been understood. Nor, in my opinion, is that what such theories are about.

Berman and Toh’s principal evidence for this claim is their view that Gary Lawson and Keith Whittington are focused on theories of law. Since I didn’t really have time to review both of them, I just went back and looked at Lawson to confirm my memory that this is not what he had in mind.

In a well known article, On Reading Recipes . . . and Constitutions, Lawson drew a distinction between “theories of interpretation,” which “concern the meaning of the Constitution,” and “theories of adjudication,” which concern the manner in which public officials “resolve disputes.” The point, as I understood it, is that the meaning of the Constitution is one thing, whether to follow it is another.

Berman and Toh read Lawson to be claiming that theories of interpretation involve claims about the nature of the constitution as law. But that is not persuasive. Rather, Lawson is really interested in the meaning of the document. He writes “Interpretation is a search for the meaning of the interpreted document.”

Supporting this interpretation is also the fact that Lawson in other places analogizes the interpretation of the Constitution with the interpretation of the Articles of Confederation. The latter is not about law, as the Articles are no longer the law. Similarly, Lawson’s claims about the Constitution are also not about the law, but about the meaning of the document. Additional support is derived from the fact that Lawson says nothing about theories of law, such as Hart’s, which one would expect him to discuss if he were making claims about theories of law.

I should add that Berman and Toh admit that new originalists Randy Barnett and Larry Solum are not making claims about theories of law. Thus, even if one assumes (simply because I haven’t gone back to read him again) that Whittington is presenting a theory of law, that Lawson, Barnett, and Solum are not making such claims strongly suggests that Berman and Toh are mistaken about the dominant focus of the new originalists.

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