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Once and Future Originalism

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

Of course, originalist scholars have refined the theory over time in what William Baude has called the division of labor between the bench and the academy. But these efforts do not change the map, but fill in important details. The world of scholarship on originalism as on other subjects is inevitably fractal: even progress on one question leads naturally to other questions. There is nevertheless an essential continuity between the  interpretive method Madison endorsed and that in which many originalist conference participants were earnestly engaged.

That is not to say that I believe with Will Baude and Steve Sachs that originalism is the law today. After the Progressive Era we went through a period dominated by non-originalism. Some of the opinions were non-originalist on their face like Blaisdell and Brown, even if they could be justified on originalist grounds. Others may have gestured to originalism, but their arguments and sometimes their results are so implausible as not to be examples of good faith originalism.  See Griswold and its penumbras  and Roe and its Hippocratic Oath and much of  the Warren Court’s innovations in criminal law.  John Hart Ely wrote a brilliant book, Democracy and Distrust, that showed how most of these results with the exception of Roe could be justified– not on the basis of originalism, but on a reinforcing representation theory of judicial review.

But originalists today are not advocating a radically new and lawless philosophy.   Originalism was the law once and today has enough influence on decisions that it is, in the words of Michael Ramsey, one of the contenders for a rule of recognition deeper than the proposition that law is whatever the Supreme Court says it is.  It can become an even more plausible as a contender, if originalists accept, as Michael Rappaport and I think they should, a role for precedent under rules that mediate between the generative force of originalism and the need to recognize than any legal system makes mistakes. Then nonoriginalist decisions that are woven in the consensus fabric of American life need not be disturbed.

It should not surprise us that in a nation as heterogeneous and divided as ours has become no underlying interpretive methodology is likely to gain a permanent victory. But the Gorsuch nomination as well as the growing culture of originalism suggests that the Constitution’s original interpretive method is regaining dominance.

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