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Originalism’s Circle of Life

John McGinnis and Mike Rappaport are on to something important in their identification of a “legal turn” in recent originalist theory. Change has indeed been afoot. But a better way to think about the nature of the legal turn is to view it as a shift from originalism as a theory of interpretation or as a theory of adjudication to originalism as a theory of law.  This legal turn is not so much progress forward that has given us a shiny new perspective on constitutional theory as it is an old-school return back to the original law of the Constitution as an anchor for today’s constitutional law.[1]

McGinnis and Rappaport’s Liberty Forum essay is not the first description of a recent legal turn of sorts in originalist theory. Mitch Berman and Kevin Toh described the change brought about by the “new originalism” (exemplified by Keith Whittington, Lawrence Solum, and the coauthors Randy Barnett and Evan Bernick) as putting a new stamp on originalism as a theory of law, rather than a theory of adjudication. Berman and Toh contended that a shift in what originalist theory was about was a better way to grasp the new originalism as apart from the old, not the usual description of a passage from original intent to original public meaning, or the introduction of an interpretation/construction distinction.

Berman and Toh were right that a core aspect of the new originalism could be best understood as a shift to originalism as a theory of law. But neither the theorists of the new originalism nor their anti-constructionist opponents have consistently or uniformly distinguished originalism as a theory of law from originalism as a theory of interpretation or of adjudication. That may be why McGinnis and Rappaport’s essay lumps together their own approach (original methods originalism as a theory of interpretation) with theorists as different in conceptual focus, for example, as Stephen Sachs (originalism as a theory of legal change) and Barnett and Bernick (a unified theory of originalist interpretation and construction that can be implemented in adjudication). When previously jousting with the new originalists over interpretation versus construction, also, McGinnis and Rappaport seemed to be presenting original methods originalism as another competing offering on the how-to-do-originalism menu of interpretive/adjudicative approaches.

Sachs made an explicit turn to originalism as a theory of law in his 2015 article in the Harvard Journal of Law and Public Policy, “Originalism as a Theory of Legal Change.” There he differentiated between originalism as an account of what the Constitution did from originalism as a theory of what the Constitution said. Ratification of the Constitution, Sachs emphasized, originated new law. For original-law originalists looking at the Constitution from this perspective, he wrote, “what we’re looking for from the Constitution isn’t really what its text originally said, on our favorite theory of interpretation, but what its enactment originally did, as a matter of Founding-era law.” (Emphasis in original.)

On this understanding, originalism as an account of our constitutional law today rests on the continuity of what is now our law with the new law added to our system at this origin. If this continuity exists (something Sachs bracketed in that 2015 article), “then the legal rules that the Constitution establishes today are the ones it established at the Founding, plus any lawful changes.”

In “Is Originalism Our Law?,” a 2015 article in the Columbia Law Review, William Baude made a similar jurisprudential turn but from a starting point in present acceptance rather than past origination. Eschewing “technical jurisprudence” in favor of “a lawyer’s operating assumption,” Baude argued on the basis of present-day social facts that “our constitutional practice can and should be understood as originalist.”

With their focus on originalism as an account of what our law is, both Sachs and Baude unmistakably made a legal turn. Owing to their professed legal positivism, they sharply distinguished their “positive” arguments for originalism from conceptual and normative arguments. Fittingly enough, they christened their move, “the positive turn.”

McGinnis and Rappaport’s more catholic “the legal turn” is a terminological improvement because “the positive turn” carries with it the controversial and unnecessary jurisprudential baggage of legal positivism. Not all original-law-ists are or need to be legal positivists.

Jeffrey Pojanowski and I are living proof. In our 2016 Georgetown Law Journal article, “Enduring Originalism,” we offered an account of original-law originalism rooted in classical natural law theory. And we have presented this as a theory of law, explicitly sidelining detailed consideration of what this originalist theory of constitutional law implied for a normative theory of constitutional adjudication grounded in original-law originalism.

Another scholar bringing originalism together with a neo-Aristotelian outlook is Lee Strang, who has presented a virtue-based approach to adjudication as a concomitant to originalism as a theory of interpretation.

From legal positivists’ point of view, of course, jurisprudential foundations in classical natural law theory are more controversial and decidedly unwelcome. And there is admittedly something lost in substituting “legal turn” for “positive turn.” For while it carries jurisprudential connotations that we think are best left behind, “the positive turn” as a label does have the advantage of focusing our attention on the content of positive law. Attention to positive law as distinct from other kinds of law, in turn, accentuates the role of human activity in making the law what it is.

Common ground shared by legal positivists and natural lawyers alike for the turn to positive law as an object of originalist theory can be found in a general jurisprudential observation by John Finnis about the relation between text and law. Wrote Finnis:

[T]he components of a legal system as a set of rules and other standards must be understood not as the statements found in the texts of the constitutions, statutes, and judgments or judicial orders, but as the propositions which are true, as a matter of law, by reason (a) of the authoritative utterance of those statements taken with (b) the bearing on those utterances and statements (and on the propositions those utterances were intended to make valid law) of the legal system’s other, already valid propositions.[2]

There is a lot densely packed in here. But the basic idea is simple: The law that results from legally authoritative text in a legal system is a function of what the rest of the law says about the legal significance of such text. It is also a function of linguistic meaning, of course. But legal meaning is a legal function.

While legal change can certainly complicate matters, this approach to legal meaning at least provides a way to draw a bead on the original law of the Constitution. As Jeffrey Pojanowski and I wrote in our 2016 article, “Because the original law of the written Constitution was a function of the text together with interpretive conventions (both legal and linguistic), the content of this original law depended on what those conventions were.”

So far, so good for the legal turn as described by McGinnis and Rappaport. Viewed from the perspective of Finnis’ jurisprudential observation above, their original methods originalism was indeed “an early example of the legal turn.” They describe this turn as forward progress, a move that “should take its place alongside the move from original intent to original meaning as one that has redirected and improved originalism.” Onward, originalist soldiers!

But it is better to think of the legal turn as a return back. On this understanding, the problem with the “original originalists” was not that they focused on original intent but that they focused on the wrong kind of original intent.

True enough, we run into problems of discovery, aggregation, and conflict with original interpretive intentions, as McGinnis and Rappaport report, if we understand original law as a function of aggregating the ratifiers’ individual, subjective intentions. But if we understand the relevant lawmaking intention in the ratifying conventions to be the common intention to enact into law (or not) the propositions of law that follow from ratification of the text as understood in light of all other relevant legal conventions, we need not be mind-readers or aggregators to recover original intent originalism—a jurisprudentially well-grounded version, that is—as a way of understanding how ratification did what it did to the law: namely, originate a new positive-law Constitution.[3]

A return to original-law originalism grounded in the intentional human activity of making positive law can also ground a return back to John Marshall as a guide for constitutional adjudication. Marshall’s opinion in Ogden v. Saunders (1827) was his sole dissent in a constitutional law case at the Supreme Court, but it includes a still-classic formulation of rules for constitutional interpretation that were so engrained in the Court’s practices by that time as to require little discussion. Wrote Marshall:

To say that the intention of the instrument must prevail, that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;—is to repeat what has been already said more at large, and is all that can be necessary.

McGinnis and Rappaport tout as one of the virtues of the legal turn its potential to “strengthen the constraints on judicial discretion.” They may or may not be right about this. For purposes of isolating the legal turn in originalist theory, they place to the side questions of when original law should yield to precedent. That is a consideration more properly addressed by a theory of constitutional adjudication, in any event, but it is obviously important because non-originalist precedent is pervasive in our constitutional practice.

To the extent that the legal turn domesticates judicial discretion further into the domain of legal conventions that focus on the respective intentions of the lawmaker and of the judge, we have the opportunity to look back to an understanding of adjudication that aims to diminish judicial will in favor of giving effect to the will of the lawmaker. This is the idea of judicial power expressed by Marshall in Osborn v. Bank of the United States (1824). “Judicial power is never exercised for the purpose of giving effect to the will of the Judge,” he wrote, “always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.”

Comprehending the legal turn in jurisprudential terms, and spurring it on further by linking originalism as a theory of law with a compatible theory of constitutional adjudication, would mean looking back beyond Berman and Toh, Sachs and Baude, McGinnis and Rappaport, and other contemporary constitutional theorists to the practices of the Supreme Court under the leadership of Chief Justice John Marshall.

Even as we operate in an atmosphere in which the idea of constitutional adjudication that does not give effect to the will of the judge may be derided as naïve, the legal turn points us toward a way of thinking about how judges can give effect to the Constitution as positive law. To be sure, this will not eliminate official discretion, but could render it more judicial in nature, leaving “mere legal discretion, a discretion to be exercised in discerning the course prescribed by law.”

If this be unrealistic, so be it. We can still try to make it real. And we should. When it comes to constitutional law, our judges will do their work better if they are faking it so as to do their best to convince us that they are not making it.

[1] A big thanks to Jeffrey Pojanowski for his indispensable guidance in thinking through this response to “The Legal Turn.”

[2] John Finnis, Philosophy of Law: Collected Essays, Volume IV (Oxford University Press, 2011), p. 18.

[3] On this point, see generally Richard Ekins, “Objects of Interpretation,” Constitutional Commentary 32:1 (Winter 2017).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 16, 2018 at 16:55:40 pm

"“Judicial power is never exercised for the purpose of giving effect to the will of the Judge,” he wrote, “always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.”"

Perhaps no better explication of Phillip Hamburgers exhortation that the Judge must be expected to perform his *judicial duty* - and not, i may add, his judicial fancy.

There is much value in the essayists recommendation BUT as the essayist indicates "this may be unrealistic" to expect that the modern, pampered, celebrity Jurist will so constrain him / herself as to practice the same restraint as the Great Chief, who carried on to the bench with him both the Spirit and the knowledge of the "bloody revolution" and behaved / adjudicated with that revolutionary perspective in mind. As both Madison and Jefferson feared, once the spirit of the revolution came to be but a faint memory, so too would the behavior / tendencies of those who lacked that spirit and understanding. Sadly, it may be said that most jurists lack that humility of purpose and power that was present in the early Courts / Jurists.

So YEP, it is unrealistic. Thus, it may be that McGinnis and Rappaport's "legal turn" may be the only way to *turn8 us back to some semblance of judicial limitations.

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gabe
on April 16, 2018 at 18:46:37 pm

For a challenge to the true believer in this stuff, I invite any law student advocate of any brand of Originalism to go and read the Madison notes on the 1781 Constitutional Convention from beginning to end. It will be make them understand just how much of a legal fiction 'original intent' (or any legislative intent) really is. It's up there with the reasonable person.

Let's step out of the abstract for a moment into actual practice of law (I think I just lost most of the law professors reading comments). In today's world, Originalism is nothing more than a tool of appellate practice. It is not and should not be a philosophy or way of life, because that very concept places an idea before a client,. That had better dang well set off some ethical warning bells in your heads right now. For all but a very select cadre of attorneys and federal judges, these points are academic in nature and do not affect their reality. For those few that do, I think they're intelligent enough to make up their own minds on the subject, or are intelligent enough to realize that they do not need to make up their own mind on the subject at all, but advocate for their client's ideas!

Now please go write some articles that make academia worth reading to actual attorneys. I am incredibly disappointed to find the disregard with which academia is held in the 'real' world, as it could do so much more good for us than it is currently! Think more 'restatement of contracts' and less 'Miranda is bull-$&%^ because of ____.'

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Not an Originalist
on April 17, 2018 at 15:25:21 pm

"We hold these truths to be self-evident..."

Our Founding Fathers recognized that God, not Caesar, John Locke, or King John, Is The Author of Love, of Life, and of Marriage.

No doubt, Originalism's Circle of Life , in keeping with both The Spirit and The Letter of The Law, will never desire to render onto Caesar, what belongs to God, for to do so would be a complete rupture, eventually leading to tyranny, as The State becomes god, and our unalienable Right to Life, to Liberty, and The Pursuit of Happiness becomes alienable.

No doubt, this rupture began the moment that one created a separate class of persons who were distinguished from "free persons", making it appear that not all persons, who are members of the human race, have been endowed with an unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, and thus the notion of "free persons", became a stumbling block, in Originalism's Circle of Life, from the start.
If the self-evident truth that all human persons, which includes every son or daughter of a human person, regardless of ancestry, from the moment they are created, and thus brought into being at conception, are endowed by God, with their unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be, what God intended, no longer is respected, than "Woe to us."

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Nancy
on April 17, 2018 at 17:02:23 pm

Crikey, I think Professor Walsh is onto something (but I suffer bias, Walsh clerked for Justice Scalia and taught my daughter, two of my heroes.) While Marshall is a long-dead and publically-forgotten Chief, "yet there are those who love" him as a giant among the Founders and as the original Originalist. "We few, we happy few, we band of brothers" who idolized Marshall from law school days came later to admire the relay from Bork to Meese to Scalia (from academia to politics to Article III judge) as the great double play of legal literature that cleared the intellectual base paths (briefly) of a living, ever- growing constitutional beast so that Originalism could, at last, take its turn at bat.

Yet as we band of brothers grew in numbers over the decades, we watched as our Originalism, once simple and sweet, was constructed, deconstructed, bisected, dissected, attacked, defended, construed, misconstrued, interpreted, reinterpreted, layered, multi-layered, abstracted and complicated beyond our recognition and "far above our poor power to add or detract."

As the divorcee said of his ex-wife, "I no longer understand what I once loved love."

And that is why I'm so very excited about Walsh's bijou of an essay. He gives me (some) clarity on the new originalism as "old" originalism and (more) hope that not just LawProf's but also ordinary trial and appellate lawyers like me, who love their democratic republic and want to rescue its constitution from judicial oligarchy, might live long enough to understand originalism as the ratifiers' "common intention to enact into law" those propositions of law and public legal understanding that were in the text at the time of ratification and to see that "old" originalism embraced as a new theory of positive law that is logically tied to a theory of constitutional adjudication that "aims to diminish judicial will in favor of... the will of the lawmaker... the idea of judicial power expressed by Marshall."

That is to say, the right way is to go back to the way the Great Chief saw it in theory and with John Marshall as the guide for adjudicating our constitution.

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timothy
on April 18, 2018 at 10:26:00 am

Timothy, "Hope springs eternal", for all who desire to Mirror Justice,

We cannot "abandon The Declaration of Independence as the source of those fundamental rights and principles by which the inevitable ambiguities of constitutional interpretation should be decided", without denying the spirit of our Constitution and thus the letter of the law, just as one cannot deny The Unity of The Holy Ghost, without denying The One Word of God, The Incarnate Letter of The Law.

"Lincoln believed that popular sovereignty was another example of tyranny of the majority."

"Tyranny of the majority (or tyranny of the masses) refers to an inherent weakness of direct democracy and majority rule in which the majority of an electorate can and does place its own interests above, and at the expense of, those in the minority."

In regards to popular sovereignty, as long as we remain true to the spirit of our Constitution, and thus to our founding Judeo-Christian principles, and Render onto Caesar what belongs to Caesar, and to God, what belongs to God, "the majority of the electorate", cannot "place its own interests above, and at the expense of, those in the minority".

God, not Caesar, Is The Author of Love, of Life, and of Marriage, thus in the spirit of our Constitution, Christ Is King.

To say, "We are no longer a Christian Nation", is to render onto Caesar what belongs to God,
"...And moderation in the pursuit of Justice is not a virtue", because a House built of sand cannot stand.

"Recommended Citation:
Lewis E. Lehrman, Foreword: On Jaffa, Lincoln, Marshall, and Original Intent, 10 SEATTLE U. L. REV. 343 (1987)."

Godspeed

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Nancy D.
on April 28, 2018 at 12:12:31 pm

So, what you are saying is that if two parties with different desires hammer out a deal where they are both happy and they sign on the line, we should then engage in a tug of war where whoever has the most power in the relationship decides that the document reads in their favor and NOT the intent and meaning of the original document AS AGREED.

This is why the typical lawyer has no concept of actual law. This adversarial approach to the law has just rotted people´s brains.

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John Ashman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.