The Empire Strikes Back Against Originalism

The nation’s legal culture ultimately determines how the Constitution is interpreted. When originalism had fallen into desuetude, the Warren Court decided cases without substantial, if any, consideration of very plausible originalist positions. It did not even deign to respond to overwhelmingly powerful originalist arguments, such as those made by Justice John Marshall Harlan in dissent in Reynolds v. Sims. That kind of performance is no longer conceivable because originalism has established an important foothold in the legal culture.

This new culture is not only a consequence of having originalist judges but also of having originalist scholars analyzing the meaning of constitutional clauses. There is a necessary division of labor between judges and scholars. Judges cannot generally be expected to do original research. They must rely on the work of experts, transmitted to them through the adversary system. We have seen this collaboration transform the law before: Justices translated the free market antitrust theories of scholars like Robert Bork and Richard Posner into a newly coherent doctrine.

Moreover, one of the obstacles to the growth of originalism has been the claim that much of the Constitution is indeterminate—that is, that its key provisions, like the Due Process Clause and Equal Protection Clause, do not a have a meaning sufficiently clear to generate legal decisions. But as the culture of originalism gains hold, scholars are showing that the inability to define the meaning of these clauses is not due to their indeterminacy but our ignorance of their legal meaning. Modern originalism recovers much knowledge that was lost during its years of abandonment.

The culture of originalism has been strengthened by three forces working in combination. The first is the appointment of originalist justices and judges. President Trump has especially accelerated this force by appointing lower court judges who pursue originalism in their own opinions, using original meaning to cabin nonoriginalist Supreme Court precedents. The second is the Federalist Society which provides a forum for debate and a hospitable shelter for originalist scholars who live in a still inhospitable academic world. Finally, originalist legal scholars, while relatively few, have been exerting an outsized influence, refining theories of originalism in dialogue with one another and unpacking the legal meaning of provisions, like the Due Process Clause, that may seem opaque to the casual reader.

But the legal and opinion establishment is decidedly not originalist, and it is striking back at all these sources of influence. First, a committee of federal judges whose membership leans heavily against originalism, has circulated a draft opinion (discussed in more detail here by Ed Whelan and here by Mark Pulliam) suggesting that judges cannot be members of the Federalist Society because it may call their impartiality into question. The opinion observes that membership in the Federalist Society “could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.”

But the Federalist Society takes no positions on any legal or legislative matters. And in fact, members can be found on both sides of divisive legal issues, like same-sex marriage. Confirming that it is taking sides in favor of the establishment, the opinion says that judges should continue to be permitted to be members of the ABA, although the ABA does take positions on such divisive issues, like abortion.

Second, in my admittedly subjective sense, since sometime before Trump’s election, law schools have become less willing to hire originalists than they once were, despite the increasing importance of originalist arguments in the courts. When originalists were exotic outliers, an originalist scholar or two on the faculty did not seem threatening and could perhaps be fun to spar with. But precisely because originalism now has substantial political influence, the overwhelmingly left-liberal academy often retreats to its ideological battlements. As a result, at most, one originalist has been hired in the past seven years at any T-14 school who does originalist constitutional law, and relatively few have been hired even at much lower ranked schools, despite the strong crop of young originalists.

But perhaps most representative of the growing establishment pushback on originalism is the appearance of Emily Bazelon’s full-length article in the New York Times Magazine, the house organ of the liberal establishment, attacking originalism. The concern expressed at the end of the article—that originalism is even making inroads with liberals—suggests that the piece is an attempt to keep the virus from spreading.

But the article actually confirms the growing reach of originalist culture and the validity of originalist arguments in three separate ways. First, it uses valuable space to engage in ad hominem attacks on its proponents rather than attempting to refute their arguments. Neil Gorsuch’s driving a gold Mercedes, noted by Bazelon, may be tasteless, but bad taste does not undermine his originalist opinions. Perhaps owning a $1.5 million house in a gated community is different from what a denizen of New Haven like Ms. Bazelon imagines living on a “prairie” is like today, but it does not bear on the justice’s legal acumen. (And even the realist implication that Gorsuch’s wealth drives his decisions is a silly caricature: liberal Justices Ginsburg and Breyer are both wealthier than Gorsuch, and Clarence Thomas is the poorest justice on the Court.)

Second, her arguments against originalism are exceptionally weak. She suggests that originalists today could not permit a women to run for president because the Constitution refers to the president as “he.” But this supposedly powerful argument is indeed “nonsense” as Gorsuch says it is. The King James Bible, the most widely read book at the time of the Framing, used the same convention of using a generic he to stand for both sexes. For instance, the gospel of Matthew states: “Whosoever shall not receive the kingdom of God as a little child, he shall not enter therein.” The Bible was, of course, not suggesting that women could not be saved. And the Constitution’s Extradition Clause requires the return of escaped felons upon the demand of the executive of the state “from which he fled.” Does that mean that women felons were immune from capture?

Bazelon is often caught in a time warp in her criticisms of originalism, as if we were still in the infancy of its revival without the benefit of mature scholarship responding to opponents’ claims. She says that Brown v. Board is inconsistent with originalism without even addressing the scholarship, like Michael McConnell’s, that argues that it is not. She suggests that originalism will necessarily require a wholesale repudiation of precedents that undergird the modern state without taking account of work like my own and Mike Rappaport’s that identifies a role for precedent within originalist theory.

But the strongest evidence of the strength of originalism is that much of her criticism of the current Court comes from originalists or originalist methods. She quotes my colleague, the originalist Steven Calabresi criticizing an opinion of Justice Scalia’s as getting history wrong. Similarly, she objects to Gorsuch’s Gundy v. United States dissent, which cast doubt on the breadth of Congress’ authority to delegate legislative power to the executive, by quoting work from two scholars at Michigan Law School who argue that the original Constitution did indeed permit such delegations. She also argues that a study of the linguistic record of “keep and bear arms” at the time of the Second Amendment shows that the phrase was used in a military context. Unfortunately, she does not assess the correctness of these contending positions (she would have more space if she left out Gorsuch’s car, home, and work as a private litigator). But all these criticisms are actually disputes about original meaning, not rejections of it.

Disagreement about meaning does not mean that the Constitution is indeterminate. Indeed, because original meaning depends on facts, it is, in principle, ascertainable, unlike the personal values that other judicial decision-making approaches require judges to use when deciding which of many inconsistent precedents to apply.

Bazelon’s article ironically shows that originalism has a powerful appeal that no amount of editorializing can squelch. Contrary to Bazelon’s claims, it has been around since the early republic. As James Madison stated: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” It continues to exert a hold on popular sentiment: That’s the reason that all sides in the Donald Trump impeachment debate, as in the Bill Clinton impeachment debate, appealed to original meaning. Today, this tradition and common sense are reinforced by scholars and judges more than at any time in the last century. We do not yet have a fully originalist legal culture, but the currents are moving in that direction.