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Originalism’s Legal Turn as a Libertarian Turn

Over the last few weeks, the Liberty Forum has featured several important and insightful essays on originalism, two of which I would like to explore here—partly as a way of seeking to understand Justice Gorsuch’s decision to concur with the four liberal Justices in an important immigration case, Sessions v. Dimaya (2018).[1]

The first essay, by John McGinnis and Mike Rappaport, explored New Originalism’s so-called “legal turn.” As a result of this turn, law professors and courts have become the dominant sources of original public meaning, often prevailing over other sources (such as majority will and historical analysis) in what New Originalists dub the “construction zone.” In contrast with the highly circumscribed “interpretation zone,” the construction zone permits a wide range of disagreement over how to discern the Constitution’s original public meaning.

The second essay, a response by Ilan Wurman, argued that the transition from Old Originalism (focusing on “original intent”) to New Originalism (focusing on “original public meaning”) is largely co-extensive with the legal turn. Although Wurman expressed doubt in that essay as to whether legal meaning should supplant original public meaning when the two conflict with one another, Wurman claimed that this is not a pressing issue in practice. This is because original public meaning is often times sufficiently capacious to be consistent with whatever lawyers and judges acting in “good faith” hold it to be as a matter of law.

As a political scientist and legal theorist, rather than a law professor, I don’t consider it within my domain to engage the normative claims in these two essays. To be sure, I have my doubts about whether the legal turn is constitutionally and politically desirable. But such evaluations are not within my expertise.

I do wish, however, to engage their descriptive claims. As someone who has researched and written extensively on the legal conservative movement, I can affirm that McGinnis and Rappaport are indeed correct in observing the “legalization” of originalist discourse, and Wurman is also on solid ground in claiming that the New Originalism transition from “original intent” to “original public meaning” coincided with this legal turn.

But what these law professors miss—and what leads me to write this essay—is that originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell, a story about how legal scholars and institutions have consolidated control over originalism discourse and used this control to lead originalism away from a conservative and toward a libertarian agenda.

Old Originalism v. New Originalism

The original originalism—what is often derided by New Originalist scholars as Old Originalism—had three attributes that no longer feature prominently in originalism discourse.

One, Old Originalism was available to the educated citizenry at large, not just elite lawyers. As a result, a variety of actors outside the courts and legal academy—including political philosophers (such as Willmoore Kendall), politicians (such as Sam Ervin), and journalists (such as L. Brent Bozell, Jr.)—regularly appealed to original understandings.

Two, the critical force of Old Originalist thought focused on cultural and social (as opposed to economic) issues. Consider, for example, Bozell’s The Warren Revolution: Reflections on the Consensus Society (1966), Lino Graglia’s Disaster by Decree: The Supreme Court Decisions on Race and the Schools (1976), and Stephen Presser’s Recapturing the Constitution: Race, Religion, and Abortion Reconsidered (1994)—all of which challenged the Warren and Burger Courts’ anti-originalist activism in race and church-state relations.

Three, Old Originalists were most interested in establishing that a jurisprudence based on “original intent” required a narrow judicial construction of the Fourteenth Amendment to preserve the basic constitutional authority of the states over most moral and social matters.  These originalists therefore took issue with the Warren Court’s use of the Fourteenth Amendment to expand federal judicial and legislative authority at the expense of local customs and traditions.  The best example of course is Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment (1975), but all of the above books also focused on the federal judiciary’s overly broad constructions of the Fourteenth Amendment.

This contrasts starkly with the New Originalism agenda. For one, New Originalism, with its abstruse nomenclature, is a lawyerly enterprise, firmly under the control of the few law professors and federal judges who engage in the practice.

In addition, the New Originalist idée fixe has not been to oppose the Warren Court. Rather, New Originalists have directed their ire toward the Hughes and Stone Courts that facilitated the New Deal. In particular, New Originalists have condemned the Hughes and Stone Courts for placing economic liberties (such as the freedom of contract) on a lower constitutional footing than social liberties.

Accordingly, many New Originalists have not sought to narrow the Supreme Court’s constructions of the Fourteenth Amendment, as their predecessors did, but to expand them. Indeed, whereas Old Originalists were suspicious of the Fourteenth Amendment “incorporation” enterprise and the concomitant judicial discovery of unenumerated liberties, New Originalists generally support this “judicial engagement,” to a degree arguably beyond the activism embraced by progressive scholars and judges. As a result, New Originalists have made the Slaughterhouse Cases (1873), as opposed to any Warren Court decision, the poster child of judicial mischief.

This has had the effect of realigning the Left-Right paradigm as it had been applied to law. Under the old ideological landscape, the decision in the Slaughterhouse Cases was generally seen as conservative and originalist. It was assailed by liberals (for unduly limiting Fourteenth Amendment guarantees against state governments) and defended by conservatives and Old Originalists (for conserving distinct spheres for federal and state powers).[2] But under the new landscape wrought by New Originalism, the Slaughterhouse Cases (and the judicial deference to state authority that the decision represents) has become despised by the legal left and by many on the legal right also.

What caused this realignment of the ideological spectrum and its application to law?

New Originalism and the Libertarian Turn

Three important changes in the legal academy and originalist scholarship have coincided to facilitate this transformation.

One is the ambiguity of “original public meaning.” Old Originalism’s focus on original intent created a problem of selection: Whose intent should control? On federalism questions, for example, we will get very different answers if we ask Alexander Hamilton, Joseph Story, and John Marshall, as opposed to Thomas Jefferson, St. George Tucker, and Spencer Roane.

New Originalism’s focus on public meaning dissolved this selection problem but replaced it with a determinacy problem. Indeed, there is increasing consensus among legal scholars that public meaning is a vastly more ambiguous concept than intent and therefore requires significantly greater political judgment—this, again, is what New Originalism calls “construction.” But why should life-tenured, unelected judges be making these discretionary political decisions?

This is where the second feature—the legal turn—comes into play. If we think of the discernment of public meaning in the construction zone as a lawyerly enterprise, so that legal methods (such as the use of judicial precedent and canons of construction) are used to supply the content necessary to fill in the gaps created by the New Originalism transition to public meaning, then the under-determinacy of New Originalism becomes less of a problem.

But if New Originalism’s under-determinacy is going to be managed by courts and the law professor class, that raises a third problem—the question of who these managers will be. Here, it is important to note that, over the last 20 years, traditionalist conservatives have dwindled in the legal academy, to the extent that they are now approaching extinction, with lonely traditionalist holdouts like Lino Graglia and Stephen Presser both approaching retirement. Studies show that the legal academy overall is more than 80 percent liberal and at the elite law schools the faculties tend to be more than 95 percent liberal. And the few “right-of-center” law professors are of a decidedly libertarian, non-traditionalist orientation—a more palatable form of thought to the Left-dominated academy.

In sum, if New Originalism creates an under-determinacy problem to be managed by the few law professors who practice New Originalism, and almost all of these practitioners are libertarian, then it seems likely that New Originalism will have a libertarian slant.

That is exactly what we are starting to see. Indeed, as a result of libertarianism’s rise within the legal conservative movement’s institutions, and New Originalism’s attendant ascension as the movement’s unifying principle, New Originalist techniques are now routinely employed to produce socially progressive, libertarian legal arguments that would have shocked originalists even a decade ago. New Originalism has even paved the path for a progressive originalism and a multicultural originalism.

Thomas Colby has observed that, in opening up the uncertainty of original meaning, New Originalism sacrificed the original appeal of originalism—judicial constraint. But this has not just meant the loss of constraint—it has also meant the loss of traditional conservatism, with New Originalism’s uncertainty being deployed to argue for open borders, the right to same-sex marriage, and the right to an abortion.

In understanding this transformation of originalism and the legal conservative movement, it is important to clarify that it did not necessarily arise as a result of a new legal or historical understanding.  Instead, it seems to have been first and foremost a political turn.

The Political Antecedents of the Libertarian Turn

The most direct antecedents trace to the 1980s, when Clint Bolick (Institute for Justice founder and current Arizona Supreme Court Justice) was a Department of Justice lawyer. At this time, Bolick was thinking about how to frame the emerging legal conservative movement as a more libertarian, economically driven version of the civil rights movement. Bolick thus sought to shift the conservative agenda, so that struggling racial minorities, as opposed to working-class “members of the Teamsters Union,” would become the targeted beneficiaries of libertarian-oriented constitutional litigation, such as school-choice and economic liberty cases.

Bolick’s DOJ notes indicate that in the late 1980s he came up with the idea that the Slaughterhouse Cases, with its narrow view of economic liberty and its anti-Reconstruction slant, represented a useful foil in constructing this libertarian, civil rights agenda.  Indeed, in his  DOJ notes on the case, Bolick wrote how “cts. have used [the] 14th Am. to restrict state auth. in other areas—but not economic liberty,” and how this neglect of economic liberties had hampered the civil rights movement.

This strategy led Bolick to oppose the Old Originalism leader, Robert Bork. As Bolick proclaimed in a 1987 speech to the Allied Jewish Federation, just a month before the Senate’s decision not to confirm Bork to the Supreme Court, “much to our consternation Judge Bork has taken a dim view of [economic liberty] arguments, just as he has held in disdain liberal judicial activism.”

That Supreme Court seat, of course, ended up going to the socially progressive, libertarian Justice Kennedy—a substitution that in many ways presaged the future of the American legal right.

The Political Consequences of the Libertarian Turn

Bolick’s libertarian vision has grown dramatically in the legal conservative movement, and Kennedy’s libertarian vision has likewise grown, if not prevailed, on the Court. Indeed, even though there remains a thicket of scholars defending religious liberty on various grounds, few scholars make originalist arguments anymore about the cultural and religious topics that galvanized Old Originalists.[3] This may be because libertarians, the principal New Originalism managers, tend to favor both the secularization weakening public morality and the immigration agenda leading America’s demographic transformation.

Instead of concerning themselves with the originalist implications of these cultural issues and how they strike at the heart of the nation’s identity and future, New Originalists occupy their time with articles contemplating how to resuscitate Lochner and unravel administrative law.

So while many conservatives expressed shock over Justice Gorsuch’s recent concurring opinion in Sessions v. Dimaya (2018), New Originalists and libertarians responded with glee that this decision, which might protect thousands of immigrants with criminal backgrounds from deportation, represented a powerful attack on the administrative state.

Consider, for example, how Cato Institute’s Ilya Shapiro wrote, we should “expect Gorsuch to be more solicitous of immigrants, criminals, and every other kind of litigant caught up in the administrative state,” and that “doesn’t make him a squish,” but rather “an originalist.” Likewise, Orin Kerr tweeted, “I suspect that in time we will see Justice Gorsuch as primarily a libertarian Justice, not a traditional conservative Justice.”  Randy Barnett clarified Kerr’s tweet by writing that Gorsuch is “not a ‘libertarian Justice’ except insofar as the original meaning of the Constitution is libertarian—maybe even including the parts that ‘traditional conservative’ jurists treat as ink blots.”[4]  In an insightful thread, Josh Blackman proclaimed that “there is much to be excited about J. Gorsuch’s opinion in Dimaya” because it suggests that Justice Gorsuch holds libertarian positions on “unenumerated right[s]” and “economic liberty.” And George Will rejoiced, in his typically elegant prose, that “the principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state.”

It would be hard to read all of this praise celebrating the Gorsuch opinion without noticing that much of it came from the same libertarian scholars and lawyers who had opposed President Trump, supposedly on originalist grounds. This is of course ironic because these libertarians are now enjoying the benefits of the power they derived from the election—and on immigration, the cardinal feature of Trump’s campaign separating his working-class supporters from his elite critics. This is particularly ironic given that the 2016 election underscored that Trump’s working-class base represents the only realistic political path that these elites have to such power over the federal bench. This point, however, was nowhere to be found in the commentary on the opinion.

Nor was there acknowledgment that the controversy in Dimaya fell within the discretionary “construction zone,” which may partly explain why there were four votes on the other side of the Dimaya case, including the Court’s two most conservative Justices, Alito and Thomas. Given that originalism seems to have authorized ruling for, but also ruling against, Dimaya, Gorsuch’s opinion may tell us more about his political inclinations in exercising his discretion than it does about any substantive content inhering in originalism as a theory of law. Much of the law professor praise of Gorsuch’s concurrence therefore may be understood not so much as a victory for originalism in the courts, but as an expression of the libertarian victory over the legal conservative movement.

Thus, I am not sure I fully agree with Kevin Williamson’s recent essay in The Atlantic, arguing that the libertarian moment has passed. It is indeed true that, outside of the Beltway, there is precious little support for the libertarian agenda. Social and cultural issues—claims to family, faith, community, and nation—are emerging as the chief concerns of the American people, a trend that seems likely to intensify on both sides of the ideological spectrum in the coming decades. It is also true that President Trump’s populist conservatism—along with his promise to appoint judges in Scalia’s mold, which Gorsuch may very well turn out to be—do not point in the libertarian direction in the long run. But libertarians can at least take solace that this is far from the case in the legal academy and federal courts. And with both the legal left and much of the legal right now firmly behind an expansive federal judicial power, that may be all that matters—at least for now.

[1] The Dimaya decision held that a federal law providing for deportation of aliens convicted of violent crimes is unconstitutionally vague.

[2] That is not to say that the Slaughterhouse Cases was extolled as a beacon of originalist reasoning. Old Originalists criticized the decision’s dismissive treatment of the Privileges or Immunities Clause as creating two sets of constitutional liberties (that is, federal and state), a distinction that does not seem warranted by the text or framing. But Old Originalists generally contended that the Slaughterhouse Court got the decision right because, outside of basic contractual and property rights, the Fourteenth Amendment did not intrude on state authority over economic affairs. See Berger, 37-51 (holding that the Privileges or Immunities Clause was designed to protect only the limited rights enumerated in the Civil Rights Act of 1866).

[3] An example of this cultural and religious focus, mentioned above, was the Old Originalist opposition to the school prayer decisions on the ground that the Establishment Clause was originally understood to keep the federal government out of state establishments, thus rendering it beyond incorporation

[4] This is a reference to Bork’s dismissive comments about the Ninth Amendment and Privileges or Immunities Clause—two provisions where libertarian scholars derive significant libertarian meaning.