Continuing on my theme of talking about scholarship that I've been reading .... Thanks to a pointer from Dan Ernst at Legal History Blog, I've been enjoying Mary Ziegler's "Grassroots Originalism: Rethinking the Politics of Judicial Philosophy." The abstract is as follows:
How has originalism become so politically successful? Whether its appeal is intrinsic or depends on the political outcomes it promises, leading studies a gree that the popularization of originalism came from the top down: elite actors persuaded grassroots activists to endorse originalism. By focusing on arguments about the backlash against Roe v. Wade, this Article argues that current studies of originalism as a political practice are fundamentally incomplete. First-generation originalists like Antonin Scalia, Robert Bork, and Lino Graglia defend originalism in part by pointing to the negative political and social consequences of any alternative approach. Roe has been the most powerful example used in consequentialist arguments for originalism. By failing to adhere exclusively to constitutional text or history, as Scalia has argued, the Roe Court forced lay people to question the Court’s legitimacy and, in so doing, helped to create the antiabortion movement.
However, these consequentialist contentions of originalism and against Roe emerged not in the academy or in the courts but within the grassroots Right. In 1980-81, antiabortion activists began arguing that Roe should be overruled because of the consequences of the Court’s activism: the creation of the antiabortion movement, the polarization of debate, and the effective preclusion of any meaningful legislative compromise. These activists were not simply attracted to originalism because of its inherent worth or because of the results it produced. Instead, members of the grassroots Right pioneered justifications that later featured in the work of first-generation originalist scholars. As the Article shows, the politics of originalism have been conducted from the bottom up as well as from the top down.
There is a good deal at stake in understanding the role of the grassroots Right in creating consequence-based justifications for originalism. First, by assuming that academics, politicians, and judges have dominated the politics of originalism, we have misunderstood important popular arguments for originalism or judicial restraint. Grassroots claims about originalism have a distinctive language, and their purpose and rhetoric differ considerably from the arguments articulated by politicians and professors. A second implication concerns the legal academy. The materials assembled here suggest that the battle for the future of constitutional interpretation will not be won by whoever has the best theory. The politics of judicial philosophy have involved an unpredictable and highly contingent give-and-take between grassroots activists and the political and judicial elites. This will likely to continue to be the case in the future.
Among the things that interest me about this is Ziegler's attempt to go back and trace out the evolution of the popularity of originalism. I'm deeply interested in the process by which constitutional arguments evolve, especially how the public interprets the Constitution, how they understand Supreme Court decisions, how they react to them, and how the Supreme Court in turn reacts (and in many cases adopts) arguments made by people outside the Court. For instance, the pre-Civil War era saw an enormous amount of public discussion of constitutional ideas and I believe interaction between the Court and the public. Outside of the domain of constitutional thought, there was also substantial interaction of elite Southern opinion and judicial decisions.
Originalism first entered my radar when Edwin Meese began pushing it, though I understand from Ziegler that he may have been echoing/expanding upon arguments that first originated among activists. There is, of course, an important question about the contribution that each person/group makes to the popularity of an idea -- so that an idea first broached by people at the margins may owe its origins to them, but its popularity to people closer to the center of power. Anyway, this is a fascinating issue of the history of ideas. I love this kind of work.
Let me turn, for a moment, though, to the issue of the depth of the idea of originalism. Given that Ziegler sees originalism orginating in the grassroots, rather than elite circles (and my guess is that there was an on-going interaction between those two), it makes sense to ask, just what does "originalism" mean to non-lawyers? (Jamal Greene's "Selling Originalism" deals with this and I hope to return to talk more about his article one of these days.) And here I have the sense the arguments are really quite thin -- like those bumper stickers that say "abortion = slavery," and have a picture of a fetus with chains around her wrists. While we have very serious, deep work around originalism I think the general public -- completely unsurprisingly -- who talk about originalism have that as a stand-in for a whole set of values, which basically mean that whatever they believe the US looked like in 1787 is what it should look like now. Very limited federal government; limited taxes, particularly at the federal level; no Department of Education, whatever else they're opposed to. That is, in contrast to the pre-Civil War era when I think people in the streets had pretty sophisticated, if odd, ideas about constitutionalism, my sense is the ideas are thin now. Perhaps that's unsurprising -- and that's no reason to dismiss popular constitutionalism out of hand. But I think we should be quite wary of thinking that there's much content to these ideas.
Anyway, I recommend you download the paper here. By the way, if you want to purchase this bumper sticker, you can do so at zazzle. When I first saw one like this on a car outside the law school in Chapel Hill I knew that I wanted to use it as an illustration of a post on public constitutionalism. It captures a sentiment so well, in such short space, yet those idea have such a far reach.