Response to Garnett, Sachs, and Green on Originalism's Intellectual History

Richard Garnett and Stephen Sachs, even if only by Twitter,  and a blog post by Chris Green at The Originalism Blog, responded to my post about the intellectual history of originalism (here, here, and here). A grad student could not ask for more.

Garnett and Sachs question whether it is problematic for originalism to have been "born in sin." Sachs wrote: "Evolution by natural selection is also a powerful idea, but the early Darwinists were a buncha weirdos," and Garnett followed up by asking, "So, do today's progressives want to own the views of Holmes, Croly, and Wilson on race? Of Diderot on entrails?"

Twitter is a less than ideal medium for communicating nuanced thoughts and I do not think Sachs was attempting to draw a tight analogy between originalism and Darwinian natural selection, and I understand his point. Nor can I chide Garnett, at least not too much, for pointing out that many Progressive-era thinkers held racist views (though Garnett fails to note that the constitutional conservatives of the day also held these views). While it is now fashionable for libertarian and conservative scholars to point to the progressive era as the point the constitutional train went off the tracks -- see Ken Kersch’s and Steven Teles's contributions to this volume -- the implicit comparison between capital-p Progressivism (a movement that can be difficult to define with specificity (see Daniel Rodgers' classic essay "In Search of Progressivism")) and originalism, a small "family" of theories of constitutional interpretation (and construction), seems inapt. And it also worth pointing out that today those who tend to hold racially conservative, anti-immigrant views combined with a white nationalism – the views Garnett points out as a problematic past for liberalism -- are a wing of the GOP as currently constituted.

Green's blog post picks up on what one would think to be a straightforward point: that originalism is both an academic theory and an integral component of the conservative movement. Green writes:

one fascinating side comment that I thought deserved unpacking. After referring to Attorney General Meese's July 9, 1985 speech as the point at which, TerBeek says, "self-conscious originalism [was] unveiled as a theory/movement," TerBeek links to a paper by Stephen Teles on the history of Reagan's Justice Department and notes that "the two strands are nearly impossible to separate." 

How does one distinguish a theory from a movement? Philosophers' distinction between world-to-mind and mind-to-world directions of fit can help here.  . . . There is a difference, that is, between originalism failing to capture the imagination of legal elites--the failure of the movement--and originalism failing to capture the actual Constitution--the failure of the theory. If the theory fails (for instance, if the theory fails to match what Madison thought, and the theory also makes Madison's thinking critical, or if the theory blurs sense and reference, or whatever), then the theory can be revised to match the reality in order to survive as a viable theory. The point is for the theory to match reality. Not so for political movements: if it turns out that the movement has not produced its intended effect, the movement cannot simply aim at something else and then declare itself a success; the whole point is to get the world to be a certain way.

Setting aside the salient fact that none of these three commentators dispute my empirics pointing toward a rather tight link between originalism and constitutional conservatives' reaction to Brown, what one see here is distressingly common when one engages academic originalist theorists. Originalists do not seriously engage their own history but retreat into Frege or Grice or corpus linguistics or another idiosyncratic theory of originalism, and, perhaps most remarkably, now argue for originalism as a potentially replicable type of social science (or, like Garnett, attempt a “both-sides” critique).

But the idea that originalism the academic theory can be strictly divorced from its historical roots and political valence strains credulity in light of the evidence. As scholars like Teles, Kersch, Amanda Hollis-Brusky, Jonathan Gienapp, Saul Cornell, and Logan Sawyer (and a short essay by myself) have begun to show, originalism can escape neither its past nor its present. This scholarship has begun to demonstrate that originalism's intellectual history appears deeply rooted in segregation; originalism shed its segregationist past as elite opinion and racial mores changed; originalism was developed over a number of years largely by conservative scholars who needed a compelling narrative to undermine Warren and Burger Court precedents and combat "non-interpretivism" and CLS in the legal academy; self-conscious originalism (contrary to the story originalists tell) was developed in the Reagan DOJ; the move to public meaning originalism was due to the ideological entrepreneurship of Justice Scalia and his former clerks who joined the legal academy; the "new originalism" was developed to justify the Rehnquist Court's jurisprudence and encourage further jurisprudential developments by the Roberts Court (or chastise the justices when they disappointed); that originalism and the Federalist Society, inextricably intertwined, are an alternative knowledge structure from the liberal legal academy to provide intellectual ballast and support for conservative justices; that judges who are members of the Federalist Society are more conservative than non-member GOP nominees; and that one of the co-founders of Georgetown's originalism "boot camp" and a prominent libertarian public intellectual, Randy Barnett, promotes his popularized work on Mark Levin's talk radio show, and the other, Larry Solum, testified on behalf of originalism (and implicitly Neil Gorsuch) at the latter's hearings.

To be clear, this is not to say that originalism as a serious academic inquiry is impossible. But originalists -- besides largely ignoring the political valence of the theory as practiced and the conservative/libertarian intellectual support structure -- seem reluctant to engage with historians' and political scientists' critiques of originalism. After years of being buffeted by academic historians, the linguistic turn was developed by Solum in order to avoid these critiques (though it is not clear that all originalists share Solum’s enthusiasm for this approach). Corpus linguistics, as used by originalists, appears to be another way to avoid historical critique at the same invoking the prestige of "big data" and putative rigorous empiricism -- all the while ignoring the fundamental problem with originalism: the probable existence of multiple "original public meanings."

The unproductive response to this evidence is to dismiss originalism as political hackery. It is not that. (Another irony in all this: historians and political scientists have taken originalism far more seriously as an idea than many liberal legal scholars). Originalism is better understood as providing the constitutional vocabulary for movement conservatism much the same way legal realism provided intellectual support for New Deal-era legal liberalism. But that also means originalism is inescapably part of the political terrain. However, originalists are now setting forth the intellectual architecture to claim that originalism is something like a replicable social science complete with a methodology. Thus -- and this has long been its implicit claim -- originalism is objective and any other theoretical construct is, by definition, constitutionally deviant. This is a bold, even audacious, claim. But it is one that needs to be debated and dissected rather than flippantly dismissed. Originalism has shown itself to be a powerful idea worthy of respect as a theory/movement. Originalists, at the same time, might do better to avoid the apolitical pretense that marks so much of the scholarship (and even the claims of more politicized actors like Levin). The final irony is this: originalism cannot achieve its desired hegemony unless and until its advocates engage with its critics rather than continually moving the proverbial goal posts. There still seems to be precious little evidence of that.

Comments

[anon]

one might say that you, sir, might do better to avoid the apolitical pretense that marks so much of the "scholarship" (musing would be a more apt description, perhaps) set forth above, and drop the attempt to smear a theory of interpretation by claiming that it is just a pretense concocted to avoid Brown. That, sir, is an impossibly biased view of the world, and for that reason you probably will deny that is your point.

But, your point reeks, as they say. "Originalism's intellectual history appears deeply rooted in segregation; originalism shed its segregationist past [only because] elite opinion and racial mores changed; originalism was developed over a number of years largely by conservative scholars who needed a compelling narrative to undermine Warren and Burger Court precedents ... "

You then proceed to link "orginalism" to an implicit smear of any republican (or perhaps you would say "conservative" though you can't define that term), who dares to espouse a theory of constitutional interpretation. (Indeed, you seem to label a racist any person who might agree with any such theory, whether a republican, conservative or otherwise.)

"Orginalism" (you can't really define this term either by reading your post, other than by reference to "anything a republican or "conservative" might have said") "was developed in the Reagan DOJ; the move to public meaning originalism was due to the ideological entrepreneurship of Justice Scalia and his former clerks who joined the legal academy; the "new originalism" was developed to justify the Rehnquist Court's jurisprudence and encourage further jurisprudential developments by the Roberts Court (or chastise the justices when they disappointed); that originalism and the Federalist Society, inextricably intertwined, are an alternative knowledge structure from the liberal legal academy to provide intellectual ballast and support for conservative justices."

Ahh, so "originalism" is anything that a republican says that is "not liberal" theory. And racist. Got it.

You then drift into citing talk radio, and other sort of weird references to Larry Solum, to whom it would seem to this reader you owe a deep and sincere apology.

In the latter reference, you jump the shark and go completely off into this bizarre la la land. In this bizzaro world, legal theories, you sometimes seem to concede may be perfectly valid and useful are just racist tropes motivated by insincere, illegitimate and sinister desires to hurt black people. Are you serious?

Bunk. If you dislike republicans so much, and every organization to which they belong and every justice they support, say so. Don't dress up your bias and prejudice with all that jargon and self-conscious posturing, because the poor little piggy that is your core point suffers for the thick, gaudy lipstick you have put on it.

Long ago, it was recognized that one of the most motivating desires for humans is to be important. Some equate that importance with recognition by others. Saying outrageous things about serious scholars may be the new normal way to garner attention ("Richard Garnett and Stephen Sachs, even if only by Twitter, and a blog post by Chris Green at The Originalism Blog, responded to my post about the intellectual history of originalism (here, here, and here). A grad student could not ask for more.") but this reader, for one, would prefer if you tone down your accusations of racism and your partisan attempt to smear members of the "other" party.

[Deep State Special Legal Counsel]

Originalism is a response to the construct of a "living breathing, Constitution." For many years, that notion was used to advance good faith, honest progressive ideas on both the right and left. However, the danger is that unprincipled people of bad faith such as racial and political nationalists will use that to invoke their notion of change ---"see, the Constitution must breath to exclude Purple People..." "Living/breathing" works both ways. Originalism takes us back to a single standard, a baseline.