Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
This edition of Liberty Law Talk features a discussion with Lee Strang about his new book, Originalism’s Promise.
Richard Reinsch: Our guest today is Lee Strang, author of Originalism’s Promise: A Natural Law Account of the American Constitution. Lee, what do you Originalists want?
Lee Strang: What do Originalists want? I think it’s changed in some ways over the decades of modern Originalism’s revivals and through the 1970s, but some things have changed, some have remained the same. Some of the things that have changed is the end state towards which Originalists argue that Originalism leads. There’s been a flourishing of scholarship, especially since the late ’90s. Professor Barnett’s book coming out in the early 2000s about providing for the protection and establishment of natural rights. More recently, John McGinnis and Mike Rappaport’s book argues that Originalism leads towards good consequences.
I think one of the things that you see in all of these different moves, all of these different normative accounts is that a reason or the reason why Originalism leads to these different state of affairs, and this is the consistent part over the years, is because it provides on balance and overall and systemically, a relatively determinate way to access the Constitution’s legal meaning and then to implement it over time. That has the kind of corollary that many Originalists, although not all, identify, which is that judges are able to identify and then follow, and then be criticized for not following the Constitution’s original meaning.
I think there’s been some change over time, but I think the key insight that Originalism offers is that it allows Americans, and especially judicial officers, to see the Constitution as a legal document that’s judicially enforceable in a principled manner.
Richard Reinsch: Let’s think more about the change within Originalism. When I was an undergraduate, when I was in law school, not that long ago and for some years after, I thought I knew pretty clearly what Originalism was, and I thought I knew pretty clearly who my opponents were. They were the living Constitutionalists, they were the Progressives, they were those for whom the text was an occasion for invention or construction for the development of new rights or the diminution of things clearly in the text.
I thought, “Those are the people that I’m trying to defeat with an original meaning.” We could have a discussion and a debate amongst Originalists about what the meaning was of provisions and clauses in the text, but we all knew we were in the same enterprise. I no longer think that when I think about Originalists.
Now in fact, and I don’t think I’m unique in that regard, it seems to me there are many camps and philosophies within Originalism. You write about those in your book. You write about even a Progressive Originalist at Yale Law School, Jack Balkin, and his school of Originalism jurisprudence, which is giving voice in some way to popular Constitutional movements. I mean, that’s a succinct description, but you can elaborate more on that.
How do you see it? When I think about the Libertarian Originalists, and then of course, there’s original meaning, original intent. There seems to be always, though, politics lurking here. Even though Originalism claims, or I always took it to be a claim that we’re not about politics or an end. We’re about understanding the Constitution itself.
Lee Strang: Yeah. Richard, that’s a great question. It’s one that I’ve been thinking about, especially since reading a chapter by Steve Smith, maybe four or five years ago in a collection that was called The Challenge of Originalism. Steve had a chapter in there titled, I think it was “Give Me That Old Time Originalism.”
It had lots of theological and religious connotations and references in it as well. Basically, what he said was something similar to what you’re saying, that there’s the old-time Originalism, which was simple. Which had the connotation of being pure and consistent, relatively easy to identify, relatively easy to implement. Then now you have today, where you have a cacophony of people claiming the mantle of Originalism, but seeming to do things and have commitments that don’t seem to be consistent with each other. I think it’s a live issue with Originalism, to what extent is Originalism a coherent phenomenon, in a way that it at least appeared to be earlier?
I guess I’ll tell you my current thoughts on that are, and I had to think this through as I working on the book. That the thing that has helped me evaluate the extent to which Originalism is a coherent phenomenon is both there’s a theoretical and then a practical part. The theoretical part comes from the concept of a focal case, which I take from John Finnis, inparticular, the beginning of his seminal book, Natural Law and Natural Rights. Then the other theoretical component is from Larry Solum, who’s identified what he describes as a number of core theses of Originalism.
Finnis and the focal case idea is that both in the natural world and in the theoretical world, there are ways to describe phenomenon that are examples of the phenomenon, that in their most healthy, most excellent version. Then there’s marginal versions of that phenomenon. One example would be an oak tree. There’s hale, hearty, old acorn versions of oak trees, and then there’s the kind of scrawny marginal versions of it. That, I think, is a lot of what you’re describing, what I’m seeing as well. Then in the sense with what Larry has been describing, where Larry’s claim, which I think is accurate, maybe with one possible exception that I haven’t worked through yet, is that Originalists are united around two core theses. One is the fixation thesis and one is the contribution thesis.
The fixation thesis is that Originalists argue that the Constitution’s meaning was fixed when the text was ratified. Then second, Originalists argue that officers implementing, following the Constitution, have to identify, have to follow the original meaning, and it has to contribute to the outcome of those lawmakers’ decisions. For judges, it has to contribute to the whole case. When you combine those two things together, I think what it suggests is that there continues to be a focal case of Originalism. When you think of the different versions of Originalism that are out there … You mentioned some. Original meaning, original method, original intent. All those folks are committed to both of those propositions.
In practice, when you scan through the list of people who are self-described and widely recognized as Originalists … We talked about Randy Barnett and John McGinnis and Mike Rappaport. They also are committed to that second proposition, that the original meaning contributes to the outcome of judicial decisions. In fact, one of the things that makes Originalism so potentially challenging to non-Originalists and to American legal practice is, that for the most part, Originalists pretty robustly embrace the contribution thesis. Because, for example, Professor Barnett famously, or depending on other people’s perspective, infamously has argued that the Constitution’s original meaning should trump all non-Originalist precedent, and which could have, critics argue, a dramatic destabilizing effect.
I think there is a lot of debate in Originalism. The debate is, typically, around what the focal case means, and how it plays out, outside the focal case, but it’s not about, whether there is…
Richard Reinsch: A lot of people will say, “Focal case.” Be more concrete there.
Lee Strang: The focal case is the fixation thesis and the contribution thesis, or I think Larry calls it hypothesis. For example, regardless of one’s stripe of Originalism, when you’re trying to decide, “How should NFIB vs Sibelius be decided?” Or, “How should Wickard vs Filburn have been decided under the Commerce Clause, Federal Commerce Clause power?” That all Originalists are committed to, “We follow the meaning as adopted in 1789, and then judges should follow that when they’re deciding Wickard or NFIB vs Sibellius.” That’s an example of focal case. Then there’s, I guess things outside the focal case or a debate about what or shouldn’t be in the focal case.
For example, Originalists disagree about how we understand the fixed Constitutional meaning. Original intent people argue, “We look to the intended meaning, original meaning, look for the public meaning.” In original methods, you look for the contemporary modes or methods of interpretation to identify the meaning when the text was ratified. There’s debate about how we understand the fixed-ness or the fixed meaning, but everybody agrees that there is fixed meaning and that we should apply it in concrete cases.
Richard Reinsch: You talk about the construction zone of many Originalists. This is, of course, a widespread criticism of Originalism, that protects itself as under-determined. It doesn’t speak, the law runs out, to use a phrase, the Constitution runs out and a doctrine has to be constructed to make it coherent with all these cases and challenges that are brought.
Does not the inherent need for a construction zone lessen the power of Originalism? This is something that a lot of Originalists contend is necessary. What do you say?
Lee Strang: Yes. I’m kind of two minds about this, and maybe that’s just my disposition, where I kind of end up in the middle on a lot of these issues. On the one hand, it seems clear to me when I look around at other related human phenomenon like literature or communication, generally, or law inparticular, that I see situations of under-determinacy. It would be surprising to me if one area of human endeavor that was exempt from under-determinacy, where the phenomenon doesn’t give us one right answer, would be constitutional interpretation.
Prima facie, I’m skeptical that there wouldn’t be a construction zone. On the other hand, I share what you identified as a concern or criticism of Originalists who have adopted a robust construction zone. You mentioned earlier Professor Balkin from Yale as being an example of that. Because that, I’m confident, becomes a situation where the kind of a minnow of construction swallows the whale of Originalism’s commitment to fix constitutional meaning.
What I try to do is identify what I think is the reasonable insight for Originalists who believe in a construction zone which, as I described earlier, I think it’s a fact of human life that many of our endeavors don’t cash-out in determinant answers, and law is one of them, and the Constitution is also one of them. I try to give some examples and reasons to think that that’s the case. Like for example, the vagueness of language, generally, of legal terms in-particular.
Then I also try to identify ways in which I think that the construction zone is modest in scope. Here, I rely a lot on the work, which I think is just really excellent, of John McGinnis and Mike Rappaport, talking about contemporary rules of interpretation. I would call them rules of interpretation, which I think existed at the time the original Constitution was adopted and ratified. Also later, for example, with the 14th Amendment.
I try to identify what I think are three key closure rules. Rules of interpretation that narrow what would otherwise be a prima facie, broad category of construction. Just one example, this is one I borrowed from McGinnis and Rappaport, is that if a judge is faced with what he or she perceives as under-determined original meaning, in other words, it doesn’t seem to give him enough information to answer the legal issue before the judge, what the judge should do is rely on the best available evidence.
There’s two parties before the judge. One is arguing the original meaning is x, one is arguing that it’s y. What the judge should do is, like judges always do, take the argument that is supported by the most, what I call, legal evidence. The most argument and historical evidence combined. When you do that, that means that a large number of cases that would otherwise be under-determined, because you don’t have maybe a 95% degree of confidence or 100% degree of confidence, become closed, become answered because you have a degree of confidence that one party’s arguments are more weighty than the other party’s arguments.
To summarize, I think there is a construction zone, but I think Originalism has built within it rules of interpretation that narrow it in a way that makes it, acknowledges the under-determinacy of the Constitution’s original meaning, while it doesn’t undermine Originalism overall.
Richard Reinsch: George Will was just on this program to talk about his new book, The Conservative Sensibility. In that book, he has a chapter called “The Judicial Supervision of Democracy,” where he contends for something pretty similar to this idea of judicial engagement, that one of the scholars you cite in the book, Randy Barnett, advocates.
George Will argues that really, when we think about the Constitution, outside of the Declaration of Independence, second paragraph of natural rights, it really comes unbound and means nothing if it doesn’t have that content anchoring it. Judges should interpret the Constitution in light of those natural rights. The title of that chapter, “Judicial Supervision of Democracy,” does Originalism point in that direction? I guess another way to ask my question, where do “We the people,” in the Republic and the accountable branches of government, fit into Originalism?
Lee Strang: That’s a good, complex question. On one point, Richard, what I would say is, first describe how I would answer these two questions. The answer to both your related questions, one of which is, to what extent are judges authorized to protect natural rights through Constitutional interpretation and their judicial power? Then relatedly, to what extent is popular democracy or the role of the American people play a role within their own self-governance, are empirical questions within Originalism, that it depends on what the Constitution’s original meaning is, how it cashes-out. Does it authorize, in fact, judges, in the exercise of judicial power, to utilize robust interpretations of natural rights?
You mentioned Professor Barnett. I think Professor Barnett has the strongest argument in the scholarship out there, that the Constitution’s original meaning is strongly rights protective, and my own … I even investigated that historical claim fully, but to the extent that I have, I think that it’s most robust vis-a-vis the federal government, and that it’s less powerful regarding the ability of state governments to govern their people. On the flip side, what role do the American people have? I think Originalism provides a really robust and certainly, a relatively more robust role for the American people in their own self-government than most versions of non-Originalism. One exception I’m thinking of is Eric Segall and his version of living Constitutionalism.
How does Originalism do that? It does that through a number of mechanisms. One, of course is, and I think Professors McGinnis and Rappaport do a good job of making this argument that a revivified culture of Originalism would help Americans exercise their civic muscles and return to the practice, which I think is salutatory and although contentious, of doing Article Five Amendments. Second, a properly interpreted Constitution, I think, leads to lots of questions, lots of legal questions, lots of social questions that the Constitution doesn’t answer. For example, abortion. I think what the Constitution says is that abortion is a state’s right issue within its area, and then slightly a federal issue on inter-state issues. Those would be areas where the American people, either through their state or national representatives, express their policy views regarding abortion.
Then third, I think what Originalism does is it creates a culture where Americans redevelop a habit of engaging with their fellow citizens on answering, either legislatively or not, or just leaving the issue alone, fundamental issues. What I have in mind here is the issue of assisted suicide, which in the early 1990s, it looked like the issue of assisted suicide was going to follow the same route as abortion, where people were going to the Supreme Court, asking for the Court to constitutionalize their right to assisted suicide. The Supreme Court, in Glucksberg vs Washington, famously turned that back. It was 1995.
Since then, it’s not that the issue has dropped off, it’s that the issue has become a state-focused issue. Some states have embraced assisted suicide, euthanasia, and many and most states have not, but Americans have exercised their civic muscles in making those questions. I think it’s an empirical question for natural rights and/or American people’s self-government. To the extent that I’ve looked into it, I think that Originalism, on the state level especially, emphasizes the ability of Americans to govern themselves.
Richard Reinsch: You make a claim in the book that Originalism, with regard to constitutional interpretation, is our tradition. That’s an interesting claim. Maybe talk about that some more.
Lee Strang: There’s a lot of debate over to what extent our Originalist claims today, in other words, the claim that we should follow the Constitution’s original meaning in cases or controversies, is that consistent with the practice in the early republic? I think where this arises is a misplaced criticism by living constitutionalists that if Originalism wasn’t the practice in the early republic, that would mean that Originalism today was fundamentally and internally incoherent. I don’t think that’s true.
For example, it could certainly be the case that even if the framers or ratifiers didn’t recognize the value of Originalism, if we today have sound reasons to recognize it, we should follow Originalism. That’s not the move that I make, but I think that’s where this issue comes from. There has developed a rich, secondary literature talking about early interpretive practices. The people that have been most persuasive to me are Christopher Wolfe, who’s now at the University of Dallas, and Jonathan O’Neill, who I believe is at Georgia State, who have gone through the history of interpretation beginning with pre-constitutional times. Like for example, in English Colonial times, up to today.
Their claim, which is supported by copious citations and examples from the text and practices of the time, is that even though they wouldn’t use the label Originalism at the time, and even though it wouldn’t be as sophisticated as people argue today, both the goal and the tools of interpretation in the early republic and continuing up until the early to mid-20th century, were clearly Originalist practices.
I think Professor McGinnis and Rappaport’s more recent work on original methods is contributing to that. It’s providing an additional analytical tool to show that in 1787 or 1789, for example, if there was debate about what the Constitution meant, one of the common moves among interpreters was to resort to these conventional rules of interpretation.
In fact, in a previous article, I went back to the debate in the first Congress over chartering a national bank, which was the biggest constitutional issue in the Early Republic. What I saw was people, prima facie, disagreeing over whether the Necessary and Proper Clause authorized Congress to charter the first bank of the U.S., but all of them concluding after using rules of interpretation that they all seemed to agree on, that the Constitution did give a determinant answer to that question.
Richard Reinsch: What do you think, so you read the First Congress debate over the Bill of Rights. It’s pretty sparse, and yet the Bill of Rights has emerged.
The meaning, the text of the Bill of Rights, particularly, say the First Amendment, What would you do with that? You have pretty thin material to work with in terms of whatever you want to call it, original intent, original meaning. How would you sort of work through that?
Lee Strang: I’ve actually, to the extent that I’ve reviewed the original meaning, for example, of the Free Speech Clause of the First Amendment, I found it to be challenging, in part, for reasons that you gave, Richard. Let me step back and just talk a little bit about how one would go about trying to ascertain the original meaning of the Free Speech Clause or Free Exercise Clause. One thing you would do, of course, would be you’d look to see, how did contemporaries describe the meaning of those clauses? Originalism would also look to try and find the public meaning of the words, and then the component phrases there.
The area that I’ve done, actually, kind of the most research on the First Amendment has been the Free Exercise Clause. I’m actually pretty confident that there’s a right answer to both what the components mean. What does free exercise mean? What does religion mean? Then what does the clause, overall, mean? It’s not because of the robust debates in the First Congress, although I think they provide some evidence on that point. Or the debates in the state ratification conventions, which we have very little evidence of. It’s more the background public meaning taken from state constitutions, state laws and the public meaning of the words themselves.
I think the First Amendment is a relatively more challenging one than let’s say Commerce. The Commerce Clause, I think that meaning has been clearly liquidated by Originalists both in the early republic, but also today. The Free Speech Clause, I think, is more challenging than the Free Exercise Clause. It reminds me of one additional point.
Richard Reinsch: You used the word “liquidate” just then. What do you make of James Madison’s position, where he clearly thinks it’s unconstitutional on the text to have a bank. He loses policy-wise. He loses in the court of public opinion, and he comes back later in his presidency and acknowledges the constitutionality of the bank, not necessarily because he has been convinced, but because the people had liquidated the meaning and had determined that it was, in fact … On that basis, the acceptance of the people, and over the course of elections, a judicial decision, that somehow, this could now be reconciled with the Constitution. How does that fit in within Originalism analysis?
Lee Strang: So I think it depends on what we mean by liquidation.
Richard Reinsch: Well, the way Madison used it is the Constitution was liquidated through republican practice. Not necessarily through the techniques of academics using Originalism.
I’m familiar with some of the liquidation scholarship, like Will Baude or others but I’m not sure it’s the way the Founders meant it, particularly in the Federalist Papers.
Lee Strang: So I guess my view is on liquidation, that it was widely accepted as a phenomenon. I think, and this is what we mean by liquidation. That it presupposed that there was under-determinacy over the thing being liquidated. I think we may be disagreeing over what Madison’s views were about the robustness of the determinacy of the Necessary and Proper Clause not allowing Congress to charter a national bank.
Richard Reinsch: Yeah, no. He never changed his mind. He thought the Constitution didn’t allow it, yet he relented on his view because he thought the people had chosen to accept it. Over time, that republican process had not changed the meaning of the Constitution necessarily, but now allowed it to be acceptable in some ways. It’s sort of a tricky description, how he walks his way through it.
Lee Strang: I think that most people at the time would have described liquidation as … I think this is still what Madison’s description was of the phenomemon, that there was disagreement over the meaning of the Necessary and Proper Clause. He had one view, he was confident in that judgment. Other people were equally as confident in their judgment, so it seemed like that was a situation, from Madison’s perspective, of under-determinacy that allowed the practices, so adoption through Congress, approval by the courts, to quote, liquidate that meaning. I think it’s a closer question, although I’m not sure. I don’t have a firm view on this, of what if the Constitution had determinably said x and the meaning had been, quote, liquidated to not x? That, I don’t see evidence for or as much evidence for in the non-judicial branches.
The research that I’ve seen so far suggests that the ability of a federal official to follow something different than the original meaning was limited to them exercising powers that authorized them to do that. Judicial power, I’m confident, allowed federal judges to follow non-Originalist interpretations in some situations, but I haven’t seen similar evidence that it would allow congressmen or presidents to follow non-Originalist meanings, as a determinatively non-Originalist meaning. I think there’s liquidation. I don’t think its bounds extend … tentatively, I don’t think its bounds extend to determine original meaning.
Richard Reinsch: The book is Greg Weiner’s book, Madison’s Metronome, where he kind of walks through this analysis that Madison had just recognized his constitutional understanding had been sort of dismissed through a public contest. Back on this point, we were talking about Originalism is our tradition and yet, Robert Bork, Scalia, other thinkers, other judges and legal thinkers are seen as almost counter-revolutionary type figures. That sort of sparks the question, okay, if it was our tradition, when did it go into eclipse and why?
Lee Strang: The story that I tell is one that I think fits most of the scholarship on this point, which is that in the late 19th, early 20th century, for a variety of reasons, Originalism came to not be the practice, or at least not the rhetorical practice, in many ways, the substantive practice of the Supreme Court. I give a number of reasons for that. One area that I’m most familiar with, just because of my teaching has been administrative law. Of course, the administrative state started to grow in the late 19th century with the Interstate Commerce Commission being the first modern administrative agency. Then continuing in the Progressive Era, then really flowering under the New Deal.
The administrative state contained, was motivated by a number of political, ideological and jurisprudential views, and it necessitated a non-Originalist view of the Constitution. Because you got to make the claim that you can’t have modern administrative agencies that are consistent with the Constitution’s original meaning. My argument is that by 1945, 1947, that Originalism, certainly rhetorically and in many ways substantively, had ceased to be the practice of the Supreme Court and most of American legal culture. It became exotic to make Originalist arguments, and at the same time, the political landscape, the practice of Americans and certain fundamental practices of the Supreme Court didn’t change.
For example, to my knowledge, there’s not a case where the Supreme Court has said, “The Constitution’s original meaning is x and we’re following not x today.” That the Supreme Court consistently, at least rhetorically, says it’s following the Constitution and its original meaning. Or, “We still follow this written document in the National Archives,” which by non-Originalist lights doesn’t make much sense.
It may be, in fact, wicked to do so because of negative provisions and unjust provisions in it, and yet, all federal officers take an oath to that document, and identify that document as having come from a specific set of humans at a specific period of time. My argument is that the written-ness of the Constitution, the provenance of the Constitution show fundamentally that the underlying practice hadn’t changed, and so that on the surface, there’s been a lot of Originalist overlay, but deeply there continue to be fundamental Originalist commitments of our practice.
Richard Reinsch: What about say the sociological jurisprudence of the Progressives, most prominently in Brown vs Board of Education? Do you find that to be an opinion where … I mean, it seems to me, yeah, there’s the text, but what they’re really concerned about is explaining to you just how bad unequal schools are. I get that but the reasoning there is, as many people have pointed out, not entirely satisfactory.
Lee Strang: I love teaching Brown for a variety of reasons. It’s a very important opinion, of course, substantively. One of the reasons I like teaching it is that, I think it’s an example, I don’t even have to comment on it. My students are underwhelmed when they read the arguments. They expect some magnificent edifice of legal reasoning and they’re just … It’s kind of like the same response I get when the students read Roe vs Wade. It’s even if they like the result, they’re just really underwhelmed. I think one of the key points of the reasoning that supports my claim in Brown is that the Court first had to dispose of the original meaning of the Equal Protection Clause. It didn’t do it by saying they were reaching an opposite result.
What the Court said was that the original meaning was indeterminate on this point, because the phenomenon of public education and racially segregated public education was new, and something the Framers hadn’t envisioned. Now, putting aside whether those claims are right or wrong, what that showed was that the Court was claiming the original meaning was indeterminate, and therefore gave it rein to utilize, in its view, these other tools of legal analysis. I think Brown is consistent with, on that fundamental level, Originalism. I also think the outcome as well. That fundamental … Even though the rhetoric is not as you were pointing out, Richard.
Richard Reinsch: In this connection with tradition and Originalism, you argue in the book, you take on arguments in the book that Originalism would lead to unjust outcomes. That’s the argument of many opponents and/or, there are sins, widely regarded in the American past, and Originalism couldn’t resolve those in a way that public opinion would accept, and that’s a mark against Originalism.
Prominently right now, we’ve just had The New York Times, in its 1619 Project, argue that our country is built on slavery, basically. This would be one of them, and of course, we see a Progressive jurisprudence of Progressive scholarship. There’s this move to tie more and more provisions of the Constitution to protecting slavery. How would you respond to all of that?
Lee Strang: So I think there’s certainly some truth to the claim. In some cases, a lot of truth to the claim, that at different points in time, the Constitution’s original meaning had been and led to and perpetuated unjust relationships between human beings, and slavery is the kind of keystone example for that. If you were to ask me, in 1862 for example, whether we should follow the Constitution’s original meaning, what I would say is, “We can ascertain it. If you take an oath to uphold the Constitution, you’re obligated to do it,” but at the same time, I would question whether one should enter into federal office and take on that obligation because of the perpetuation of that institution of slavery. That’s not today, right? Instead, my argument is that the Constitution’s original meaning today creates a basically just legal system. Not perfectly just. Certainly, not by my own lights either.
There are a lot of things that I would like to be, to have changed in the Constitution’s original meaning. More fundamentally, what I argue, Richard, is that the argument that one should judge an interpretive methodology by the policy results or substantive results that it cashes-out is a misplaced view. I certainly don’t teach my law students to view law and the legal process and the judicial process as being solely, or entirely, or even mostly about the substantive result.
What I try to do is tie a picture of law coordinating Americans, and then tie that to the Constitution. Just like the broader American legal system, or the legal system of Ohio where I’m at, creates a basically just legal system. Therefore, officers who are members of that legal system and swear an oath to that legal system, should follow it because of the benefits that Ohio’s legal system provides. Similarly, because the benefits that the American legal system, fundamentally resting on the Constitution provide, that judicial officers have sound reasons to continue that basically just legal system.
I’m acknowledging, certainly historical and even current injustices in the original meaning, but that’s not our standard for judging interpretive methodologies. Instead, what we say is that in interpretive methodology, the interpreters have sound reasons to perpetuate the basically just legal system that their interpretations are a part of.
Richard Reinsch: Many would argue, cynically perhaps, Originalism, though, always has to find a way to accommodate hard cases like Brown, which Raoul Berger, an early originalist, said was wrongly decided under Originalism. Then came the famous Law Review article by Michael McConnell which helped Originalists get Brown right.
Isn’t Originalism, though, going to have to do the same thing with Obergefell vs Hodges?
Lee Strang: I’m not actually aware of any attacks on the Originalist bona fides or lack there of, of Obergefell. There’s scholarship, for example, by Steven Calabresi that suggests that Obergefell is consistent with the Constitution’s original meaning, although I frankly just don’t find those arguments persuasive at all.
Richard Reinsch: Calabresi is one of the founders of the Federalist Society. He’s an Originalist.
Lee Strang: Yeah. An Originalist for a long time.
Richard Reinsch: I can think of some Originalists, a lot of The Volokh Conspiracy writers love the result. They criticized it in various ways. It seems to me, it’s inherently the political thing that comes out, and Originalism has to find a way to accommodate it. How do you see that?
Lee Strang: So on the one hand, when I think, so what’s a legal system’s purpose? A legal system’s purpose is provide a mechanism for people to live together as well as possible. Legal systems are run by human beings who make mistakes, sometimes unintentionally, sometimes intentionally. Justice Kennedy authored Obergefell. I think it’s inconsistent with the original meaning and I don’t know, intentional, unintentional, whatever. I don’t even know if he cared about what the original meaning was.
Any viable legal system that’s trying to help people live together is going to have built into it a mechanism to account for mistakes. Originalism has that mechanism, primarily through a theory of non-Originalist precedent. I push against the premise of your constructive criticism that if Originalism is able to accommodate non-Originalist decisions, or it seems like it does all the time, if that’s somehow a flaw, I think it’s only a flaw if the accommodation undermines Originalism’s fundamental commitments.
Because otherwise, I think that Originalism actually is virtuous for having accommodated some non-Originalist precedents. In fact, one of the reasonable criticisms of Professor Barnett’s view of Originalism is that his view would lead to dramatic destabilization of the American legal system because of so many decisions being overruled in such a short period of time. In fact, he recognizes that, right? In some of his scholarship, Professor Barnett has argued that judges should slowly overrule the non-Originalist precedents using their equitable powers, but that argument there is under-justified.
I think even people within Originalism who would be sympathetic to your view, which is that Originalism gets co-opted over time or has to fit with political or policy views, recognize that to be a functioning interpretive theory for a functioning legal system, it has to be able to account for mistakes, and I think Originalism does. At the same time, it has to have a mechanism that it doesn’t accept everything, right? Because then it becomes what you said, which is just another political manifestation.
What I’ve argued is that judges have an analysis, it’s not determinative. In other words, reasonable people could disagree. That takes into account three factors. One is to what extent is a decision, Obergefell, Brown, Roe, whatever, Wickard, inconsistent with the original meaning? Second, to what extent would overruling the decision harm rule of law values? Then third, and this is maybe the most provocative part of the analysis. To what extent does the decision under consideration reach normatively attractive results? Of course, people are going to disagree on that third point.
Richard Reinsch: That’s justice, right. The good.
Lee Strang: Does Brown, does Roe, does Obergefell create just relationships between Americans, or does it detract from it?
Richard Reinsch: Switching gears here, you also write a lot about Aristotle in this book, which I find interesting and a lot of others will find interesting. Does Aristotle help us think or bolster our thinking about Originalism?
Lee Strang: There’s lots of different individuals that I could have relied on. What I try to claim is that this way of approaching philosophy, this Aristotelian philosophical tradition, starting with Aristotle. I think Thomas Aquinas was the great synthesizer. Then there are modern exponents, John Finnis, Robert George and other people, so I try to look at this body of thought set in motion by Aristotle. For the most part, being faithful to Aristotle’s description of humans and human society.
Would Aristotle have something to say about Originalism? The answer, I think, is clearly, “Yes.” Because he has something to say about humans living together, in both parts, right? He has something to say about what it means to be fully human. He describes the ways in which, for example, justice is both an internal virtue but also a norm that humans should follow in their lives and in their interactions with each other. I translate that over into a conception of the common good that the American Constitution’s original meaning is the key mechanism to help American’s today pursue. Aristotle’s got a lot to say about Originalism.
Richard Reinsch: Well, I like that. Lee Strang, thank you so much for joining us today to talk about your new book, Originalism’s Promise: A Natural Law Account of the American Constitution. This has been lovely. I appreciate it.