Embracing originalism is not the only response that progressives might make to conservative nonoriginalism, but there are reasons to think they might.
Lynn Uzzell has criticized the positive reactions of both originalists and nonoriginalists to Mary Bilder’s book, Madison’s Hand (which argues that Madison doctored his notes). While I agree with some of what Uzzell says, unfortunately she fails to appreciate the importance of developing a strong originalist theory that will win the debate among experts.
Let me start with an area where I am in sympathy with Uzzell. Although I have not read Bilder’s book and can’t comment specifically on its scholarship, I agree with Uzzell that the book should be scrutinized and that it is not helpful to originalism if Madison’s notes are unreliable. That said, Bilder’s is a history book, and it is mainly the job of historians, not legal theorists, to assess it. Unfortunately, most historians are anti-originalists. Thus, I welcome Uzzell’s forthcoming book criticizing Bilder’s argument.
But I must disagree strongly with another strand of Uzzell’s post – her claim that the advances made by legal theorists are not especially helpful in promoting originalism. Uzzell claims that the public will not be persuaded solely by esoteric or hard to understand theories put forward by experts. But even if this is true, the views of experts are important and are often influential with the public.
It is essential for originalism to compete successfully in the debate among experts. I have seen the difference that support among experts makes. In the 1980s, originalism was believed to be a simple minded approach that no thoughtful and sophisticated person could accept. If one practiced or defended originalism, one was treated as if one was a flat-earther. For example, the legal historian William Nelson once said that he would never vote in favor of tenure for an originalist, as if originalism were like astrology. In such a world – where anti-originalists could just assume that originalism was wrong – persuading people to be originalists was extremely difficult.
Now, things are different. Originalism is respectable. While most lawyers, judges and academics still oppose originalism, one does not have to apologize for it anymore. A law professor or judge can say one is an originalist and people accept that it is not an unreasonable position to hold. That is a function of at least two things. First, and foremost, the arguments made in favor of originalism in recent years have become much more sophisticated and more persuasive. Second, many leading scholars have become originalists and defend the position. Thus, it is much harder for people to simply dismiss originalism. Now, they need to present arguments – they can’t just be prejudiced against it (in the sense of pre-judging it). It is true that non-experts may not fully understand these arguments, but that is besides the point. This is a battle among experts and what experts believe matters.
Consider the difference between two justices – Chief Justice Roberts and Justice Gorsuch. In his formative years as a lawyer, Roberts lived in a world where originalism was ridiculed and rejected. While one suspects that Roberts is sympathetic to originalism, he is not willing to tie his reputation to originalism in the way that Scalia or Thomas did. I suspect that is because Roberts still retains the belief of his formative years that originalism is just too controversial to be relied upon forthrightly.
By contrast, Gorsuch grew up as a lawyer in a world of Scalia (and then later Thomas) opinions. In that world, originalism came to be defended by sophisticated arguments. Originalism had become more respectable. I believe Gorsuch is willing to tie his reputation to originalism in part because he thinks of it as a strong theory that cannot be easily dismissed.
The moral of the story is that expert debate matters. Of course, it is not the only thing that matters. The public’s views are also important. But the public’s views are in part based on the views of experts. And therefore winning the debate among experts is essential. While Uzzell offers advice on how to win the war, she unfortunately underestimates the importance of this battle.