Normative Foundations of Originalism

Law & Liberty has become a major source of analysis of the future of legal conservatism and its signature doctrines. Back in April, Michael Greve’s “Originalism as Ideology”[1] diagnosed contemporary originalism as an “ideology” in the specific Hegelian sense: a timely idea that gets treated as timeless, with the result that its contingency and motivations are overlooked or denied. Greve argued that originalist practice “would benefit from candor and reflection,” and especially from more effort to “connect semantic theories to a substantive theory of the Constitution and of constitutional politics.”

Now comes Jesse Merriam’s thought-provoking Liberty Forum essay for July, which  draws the very kinds of substantive connections Greve called for. Merriam places the recent trajectory of originalist theory in the larger context of a critique of the fecklessness of the American conservative movement. He concludes that the apparent triumphs of the Federalist Society and originalist theory have not, in general, produced victories for conservatism—particularly not for the traditionalist branch of conservatism that focuses on “faith, family, and community.” Rather, originalism and its associated institutions like the Federalist Society have increasingly fostered a flexible, abstraction-heavy interpretive approach of “original public semantic meaning” that (especially in the academy) has been used to assimilate and validate past progressive cultural victories, while empowering present and future courts to reach ideologically libertarian results congenial to many elite lawyers and law professors.

I share the view held by Greve and Merriam (also by alert progressives like Eric Segall) that originalist theory has been evolving in ways that are more prone to obscure the exercise of judicial discretion than to constrain it. And I agree with Merriam that this development has not been particularly positive, either for legal conservatism or for the broader conservative project in America. The prior contributions to this Forum have engaged at a relatively broad level the issues raised by the possible tension between originalism and conservatism. Here, I’d like to supply some detail. My hope is to flesh out the discussion by examining a particular way that a subset of originalist theory (one with close ties to the institutions of legal conservatism) is becoming, not merely detached from conservative goals, but inimical to them.

Bork’s Continuing Relevance

Originalism as a theory arose two generations ago at the hands of pioneering figures like Robert Bork in order to defend a determinate Constitution in the aftermath of the revolutions in criminal procedure, sexual autonomy, and equal protection imposed through the constitutional decisions of the 1960s and 1970s. In the wake of performances like Roe v. Wade (1973), it was important to have (as Greve dryly puts it) “a respectable way of telling Justice Brennan and Justice Marshall, you can’t just make things up.”  

The old (or original) originalists argued that the legitimacy of judicial decisions that struck down federal or state legislation on constitutional grounds ought to be measured by the extent to which the decisions conform to the “original understanding” of the constitutional provisions being applied—that is, the understanding that existed at the time of the provision’s enactment. The norm that underpinned this view of legitimacy was popular sovereignty. The Constitution, as its preamble states, derived its authority from its establishment by the people, so judges invoking it to strike down laws needed to be able to show that their decisions faithfully implemented choices traceable to that sovereign act.

The original originalists thought many of the marquee decisions of the 1960s and 1970s, as well as pre-New Deal economic liberty decisions such as Lochner v. New York (1905), failed to meet this criterion of legitimacy. Canned histories of originalism sometimes imply that Bork’s work is obsolete because of an early emphasis on “original intent,” but in truth, by the time he published The Tempting of America in 1990, Bork was regularly expressing his arguments in terms of a notion of “original understanding” that incorporates what was of value in Paul Brest’s and Jefferson Powell’s critique of intent as an originalist criterion.

What strikes the reader today is the extent to which Bork understood the late 20th century problem of judicial review as a manifestation of class conflict. Far from dating his work, this is a source of its sustained relevance, giving a clarity and strength to Bork’s use of the norm of popular sovereignty. The “political seduction of the law” that Bork condemned was essentially the deployment of constitutional doctrine by a parochial yet self-confident “intellectual class” as a means of imposing its own preferences on contested cultural and political issues. The limitations imposed by the original understanding promised to reduce the discretionary power of the elite-identified judiciary, and thereby save a space for self-governance, particularly in matters of common morality and culture.

A decade later, with a “new” originalism beginning to emerge, the same normative vision remained prominent. Keith Whittington’s Constitutional Interpretation (1999) carefully articulated how originalism’s claims could be understood as rooted in the norm of popular sovereignty. While premised on updated concepts of “original public meaning,” and far less obviously rooted in social conflict than Bork’s work, Whittington’s project still showed continuity with the old originalism.

Whittington’s argument was essentially this: If the ratifying community cannot fix the meaning of its supreme law with at least reasonable determinacy at the time of its enactment, then that community does not really exercise sovereignty over the law’s content—and in such circumstances, one may reasonably fear that the government officials then in power, not the people, are ultimately sovereign over the polity that the Constitution should serve to embody and constitute (which, we might add, makes it significantly more likely that the sovereign will reflect the concerns of a privileged class or faction; here is the connection with the Borkean framing of the problem). An originalist approach, by focusing on the linguistic and social understandings available at the time of ratification, can claim special advantages in the effort to keep the content of constitutional law in the hands of the constitutional subject, the people.

Again and again, Whittington stressed how originalism could preserve “democratic dualism” by ensuring that the popular sovereign could delineate both the limits on government that the Constitution imposes, as well as what issues it left open to be resolved by ordinary democratic governance. Thus a constitutional culture committed to originalist interpretation could empower the people. Originalism as method, and popular sovereignty as norm, remained as mainstays of center-Right constitutional theory.[2]

Many of those of us who became originalists as students, law clerks, and/or young lawyers around the turn of the millennium did so on the strength of these arguments. Since that time, however, the major currents of originalist theory have increasingly weakened originalism’s connection to the norm of popular sovereignty.

Embracing Abstraction, Rejecting Constraint

Some latter-day theorists like to present originalism as a consequence of the use of a written text as such, thus obscuring the question of normative foundations. They sloganize to the effect that there’s no difference in principle between interpreting a constitution and a laundry list, between a constitution and a “fried chicken recipe.” This rhetoric is tone-deaf in the present era of disruption, where the authority of the Constitution, the normative value of American history, and the nature of the political compact are all aggressively disputed.

It is also poor history. As Greve observed in his April remarks, “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.’ ” And it’s often forgotten that the chief example of indeterminacy offered in Powell’s famous critique of “original intent” was not a semantic disagreement between Founding-era Americans on the denotation of a clause-bound term; it was their disagreement about what kind of document the Constitution itself is.

While the chicken-recipe rhetoric merely tends to obscure the importance of what Greve  calls “constitutional politics,” other forms of contemporary originalist discourse do worse. Libertarian originalists explicitly detach originalism from the popular sovereignty norm, in favor of other norms such as a libertarian conception of individual rights. This doesn’t sound like a bad thing until you see what it entails in the hands of at least some libertarian theorists.

For an uncompromising example of the anticonservative tendency of today’s libertarian originalism, take a look at “On Originalism and Liberty,” an important statement on originalism by one of the cofounders of the Federalist Society, Professor Steven Calabresi. This 2016 lecture by Calabresi, a public law scholar who has occupied a prominent place in legal conservative institutions for decades, displays two of the most troubling tendencies of contemporary originalism: the embrace of abstraction and the rejection of concrete constraint on adjudication. I want to be clear: Not all libertarian originalism displays these tendencies as strongly as does Calabresi’s lecture, but virtually all of it displays them to some degree.

Because Lockean thought influenced the Founding generation, Calabresi concludes that the Ninth Amendment “can be read to enact John Locke[’s] Two Treatises of Government (1689).” A wide range of unenumerated rights are to be protected against legislative control except when a court concludes they are being regulated by “just laws enacted for the general good of the whole people.”

The range of sources that judges may evidently invoke under this form of originalism is extraordinary. Calabresi asserts that “we cannot finish our discussion of the 1790s without noting” the promulgation of the French Declaration of the Rights of Man in 1789, with its claim that “liberty consists in the freedom to do everything which injures no one else.”  Even the United Nations’ 1948 Universal Declaration of Human Rights (about which Peter C. Myers recently wrote in these pages) might be an invocable source for originalists. Calabresi concludes his lecture by enthusiastically quoting the UDHR’s equality guarantees, stating that they “mark[ed] a return to the original Founding ideal that animated Americans in 1787, 1791, and in 1868.”

Then there is equal protection itself. On Calabresi’s telling, the original meaning of the Fourteenth Amendment’s Equal Protection Clause entails the invalidation of laws defining marriage as the union of a man and a woman, if judges conclude that the traditional understanding of marriage is sufficiently analogous to a “caste system.” Purged of the limits that might once have followed from expected application, this reading allowed Beltway libertarian originalism to reach its zenith: the conclusion that Obergefell v. Hodges (2015) was correct as an originalist matter.

A Breaking Point

It’s time to circle back to the “why originalism” question of substantive foundations, to see how far we’ve diverged from what had been the mainstream. Nothing but the smoke of blown wiring emerges if one attempts to reconcile “On Originalism and Liberty” with a Whittingtonian theory of popular sovereignty. On Calabresi’s account of the Fourteenth Amendment’s original meaning—which he claims the five Obergefell justices correctly enforced—what were its ratifiers doing in 1868? They were delegating authority to federal judges to nullify any legal institution or social practice that a future Court majority deemed to function in a way sufficiently analogous to a “caste system,” even if it was an institution or practice universally considered legitimate at the time of ratification, one that had nothing to do with the racial caste system of the 19th century South, and one that was part of the law of every nation until the year 2000.

Far from preserving a defined realm for “democratic dualism” going forward, this is a sovereign act that would more closely resemble the “one person, one vote, one time” elections that enthrone antidemocratic strongmen. It surrenders not just a large share, but an indeterminately large share of self-governance to the future judiciary. One cannot coherently tell a Whittington-style story about the act that this version of originalism imputes to the ratifiers. (It is not obvious that a society guarded by a Calabresian federal judiciary deserves to qualify as a democratic republic.)

Moreover, this strand of libertarian originalism undermines conservative legal positions in other vital cases. It is a weaker tool for arguing against Roe v. Wade than even a plain old common-law system of precedent would be. At one point in his lecture, Calabresi assures us that—in contrast with a right to same-sex marriage—the claim of a constitutional right to elective abortion is a “political question,” not covered with sufficient definiteness by the broad “anti-caste” principle he locates in the Fourteenth Amendment. Yet the legal distinction between Roe and Obergefell seems arbitrary once the Fourteenth Amendment’s “original public semantic meaning” has been fully severed from Founding-era expectations or purposive context.

Any con law scholar knows that feminist and progressive legal authors have argued for decades that an expansive abortion right should be based on equal protection grounds, precisely in order to prevent what they view as the reduction of women to the status of a disfavored group in a “gender caste system.” I do not endorse this argument, but it is at least as strong as the Calabresian argument for mandatory recognition of same-sex marriage. Once one has accommodated Obergefell to originalism, few resources remain to resist abortion. Nor (as Nelson Lund pointed out in an implacable critique of these arguments) would there be any originalist reason why federal courts should not also compel the legal recognition of polygamy.

So it is not just a matter of us all reaching the same desirable destination, “originalism,” by a variety of different routes (you take the libertarian rights route, I take the popular sovereignty route). Some libertarian theories of originalism imply models of judicial governance that are flatly incompatible with the substantive norms that motivate American conservatives and traditionalists, and undermine their positions on critical issues.

Pushed in Opposing Directions?

Greve, for his part, thinks originalists within the academy are under virtually irresistible pressure to accommodate their theories to (what one might otherwise have deemed) the originalism-antimatter of Obergefell, in order to “remain part of the conversation.” Yet most law professors also care what happens to their ideas outside the academy, and pressure can emerge in other institutional contexts. If the currents prevalent in the legal academy succeed in defining originalism as a diverse “theory family” that encompasses everything from popular sovereignty to libertarian judicial engagement, original methods to construction zones, Borkean skepticism to mandated same-sex marriage, then we have to expect that an official profession of “originalism” will gradually cease to be a reliable indicator of something that lay (non-lawyer) conservative or traditionalist Americans will care about.

It feels odd even to imagine a future where “I’m an originalist, Senator” could lose its reassuring ring, and this is testimony to the genuine power of the originalist idea. Yet the flux of this cultural and political moment has already overtaken seemingly basic labels like “true conservative”: today, they connote something quite different from what they once did. It could happen to originalism. This would likely translate into a withdrawal of political support for the originalism-identified institutions of the legal conservative movement. The potential overruling of Roe/Casey should be a pivotal moment here.

To sum up, while the originalist idea arose from a concern with popular sovereignty—and, in its judicial aspect, it continues to draw indispensable political support from people who share that concern—we now see institutionally prominent theorists pushing originalisms that are destructive of that norm. And this is happening at a time when the Right is becoming more, not less focused on issues of sovereignty, with the frame of class conflict becoming steadily more salient to constitutional politics, both in the United States and around the Western world.

All of the other respondents in this valuable Liberty Forum, even to a degree Merriam himself, are optimistic that institutional originalism will be able to sort out these conflicting strands in a more or less satisfactory manner. While I share their hope, I would urge realism about the challenges facing such an ecumenism, some of which I’ve sought to clarify here.

[1] Greve’s Law & Liberty post was based on his remarks at an April 2019 conference sponsored by the Jack Miller Center and the Lynde and Harry Bradley Foundation.

[2] But not the only game in town, then or now. First, regarding method: One can question whether a formalized, originalist approach to interpretation is actually more effective in practice at meeting the goals of curbing oligarchy and preserving popular sovereignty than, for example, a “conventionalist” interpretive approach or one based on the concrete authority of tradition and social practices. Both Marc DeGirolami’s and Mike Rappaport’s valuable contributions to this Forum touch on these possibilities, as well as a possible fusion of originalist and traditionalist methods. Second, regarding substance: Not all thoughtful conservatives are center-Right. A fully right-wing jurisprudence might reject or supplement the popular sovereignty norm, perhaps seeking to interpret constitutional provisions directly in light of traditional morality.