Originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution.
The Incentives of the Dominant Majority and the Small Minority
Co-blogger John McGinnis has a recent post asking why the Federalist Society has more political diversity on its panels than the American Constitution Society. Of the possibilities that McGinnis suggests, the one that I think is most likely is the following:
The right is underrepresented among lawyers and radically underrepresented in the legal academy. The Federalist Society wants to get their ideas and people known and the best way of doing that in the left-leaning world is to have discussions with the other side to gain respectability or at least notoriety. The academy and even much of the established bar is much harder to distinguish from the ACS than from the Federalist Society. The ACS thus not does need to gain respectability as much and can concentrate more on resolving internal conflicts and pushing an agenda without brooking contradiction.
While I agree with McGinnis that a minority gains respectability by having discussions with the dominant group and the majority does not need to do this, I believe that there are other important motivations that underlie this behavior. (One important qualification: Since I don’t know what is in the minds of the ACS leaders, I don’t want to say that my explanation is necessarily correct. Instead, it should be thought of as a rational choice explanation: Given certain preferences and the structure of the legal world, progressives would seek very little political diversity.)
If a group predominates in the legal world, such as progressives do, one way to maintain your position is to make people believe that yours is the only acceptable view. You would do this by having only progressive speakers. You would not want to invite right wingers and suggest that their views are acceptable or part of the mainstream.
This uniformity is reinforced by allowing disagreements only between progressives. One is saying, these are the real issues – progressive type A versus progressive type B – not between progressives and right wingers. This type of exclusion is important in politics. People in politics respond strongly to social cues and allowing only certain ideas a seat at the table is a strong social indicator of acceptableness.
Another reason for this uniformity is that it does not respond to contrary ideas, but ridicules them. One cannot really do that when scholars who believe these ideas are present. But by excluding them, one can attack the straw man without fear of counterattack.
Finally, people from the dominant group may enjoy these type of presentations more. In politics, people usually don’t want to hear the other side. Thus, audiences may be bigger if there is uniformity.
There will, of course, be a cost to this strategy. It means that, as far as conferences serve to educate people, progressives will be less adept at responding to right wing arguments. But if progressives dominate the field, the right wing arguments will be rare and the other considerations will far outweigh this one.
In addition to the behavior of ACS, rational choice theory also supports the greater interest in political diversity of the Federalist Society. A group with a small minority of the legal world will need to learn how to critique the dominant group. The members of the minority will constantly be thrown in with members of the dominant group and therefore need to be able to criticize that view and to defend their own view. There is no benefit from hiding those majority views at a Federalist Society conference, because Federalist Society members will be exposed to them in any event.