The Ford-Kavanaugh controversy raises issues at several levels of analysis, and we should be careful in assessing each on its own terms.
In recent years, a number of conservative legal scholars have expressed skepticism about modern originalism. The idea is that modern originalism has been greatly influenced by libertarians and even liberals such that it is no longer congenial to traditional conservatism. Jesse Merriam’s Liberty Forum essay is in part an example of this view.
Those who hold this view ask whether traditional conservatives should continue to be originalists. Perhaps if the originalism is distorted, conservatives should abandon it in favor of what Merriam calls a “new conservative agenda” that “engage[s] how the Constitution relates to the concerns of citizens who wake up each day to a country they decreasingly recognize.”
Here I write as both an originalist and classical liberal (and therefore an outsider to Merriam’s core audience). I have two basic points. First, while some originalist theorists have recently moved their originalism in a direction that is uncongenial to conservatives, that does not mean that originalism must have that character. Second, conservatives will be much better off attempting to persuade originalists of their ideas than trying to develop a nonoriginalist conservative jurisprudence.
Merriam argues that the original public meaning approach of modern originalism allows progressive interpretations to claim the mantle of originalism and thereby justify progressive jurisprudence. He is surely right that some versions of originalism grant so much discretion to judges that they allow a progressive living constitutionalism. For example, Jack Balkin famously argues that originalism and living constitutionalism are compatible, because the original meaning is very thin and therefore has minimal content. This permits future generations to add to that meaning based on modern values. There are other versions of originalism that also allow significant discretion. Nothing within originalism, however, necessarily requires that it grant significant discretion to judges. Therefore conservatives can, with perfect respectability, argue for alternative approaches to originalism.
First, conservatives could promote much thicker understandings of the meaning of constitutional terms. These thicker understandings mean that originalists are bound by more content from the original constitution than approaches that adopt thinner views of the original meaning. And therefore there will be less discretion for modern judges to update the Constitution under the guise of enforcing its original meaning. One such argument for this thicker theory of meaning is made by John McGinnis and me.
Second, conservatives could modify the view of modern originalist theories that places little weight on expected applications. An expected application involves evidence that the framers of a provision expected it would have a certain effect in the real world. For example, the Framers of the Fourteenth Amendment appear to have expected that its equality requirements would not protect women. Modern originalists have often denigrated that expected application, saying that what counts is the meaning of the terms, not the expected applications. But one could make an entirely respectable argument that expected applications are important, even if they are not the meaning, because they often indicate what people at the time thought were the meanings—people who were in a good position to know those meanings. Again, John McGinnis and I have made an argument of this sort.
Third, even if one accepted a thin theory of meaning, conservative-friendly devices could be employed to fill out that meaning. One such device, which has significant support, is the meaning given to a provision over time by the government. This can be the meaning that the courts gave to a provision or that the executive and legislature gave to it. This is sometimes known as practical construction or liquidation. Under liquidation, the interpretation followed for a period of time during the 19th century will often be the meaning that is binding on modern interpreters. Thus, traditional conservatives could argue for traditional interpretations within a perfectly respectable modern originalism.
Finally, traditional conservatives could also support their position if they were willing to take one step away from the core of modern originalism. Typically, originalists argue for an approach to meaning that is based on a non-normative analysis of the concepts of interpretation and meaning. Under this analysis, originalism is in an important sense value-free. But some less orthodox originalists take a different approach. Balkin defends his thin theory of original meanings based in part on a normative argument: that the thin theory allows future generations to update the Constitution, which is an attractive way to run a polity. But if normative considerations can be used to support Balkin’s thin theory, they could also be used to support a conservative view. For example, conservatives might argue that the meaning should be defined (in part for normative reasons) as including traditional values that Americans held at the time of the relevant enactment.
To be clear, I am not arguing for these aspects of originalism based on my own views of the best originalist approach. I am sympathetic to some of these aspects and less sympathetic to others. But there is nothing within modern originalist theory that would bar a view that incorporated these ideas. Conservatives have a clear path within modern originalist theory to advocate a conservative originalism—if they choose to pursue that path.
Which gets me to my concluding point: that traditional conservatives will be better off fighting for a conservative originalism than developing some new theory of interpretation.
The growth of originalism in the last two decades represents an impressive accomplishment for a mainly right-wing theory. Originalism has gained visibility and acceptance, so much so that people on the Left have even decided to follow it. It is thus a prize worth pursuing for conservatives to attempt to secure a significant place at the table of modern originalist theories.
If conservatives were able to convince a substantial number of originalists of the worth of their approach, they would have influence on the Supreme Court and on the legal profession generally. And it would be easier for conservatives to convince this group of originalists, which contains a significant number of conservatives, than other groups, who are much less comprised of conservatives.
What is the alternative to pursuing a conservative originalism? Traditional conservatives could attempt to come up with a new theory or resurrect an older theory. Who knows what that would be? And it would be hard to imagine it would connect with the American tradition or the modern world as persuasively as modern originalism has.
Conservatives more than anyone should understand the value of a tangible accomplishment that has been developed by the work of many people over multiple generations. Abandoning originalism because it is not perfectly suited to traditional conservatism, rather than attempting to reform originalism, would be a profoundly unconservative decision.