Originalism and Constitutional Translation: Part I

“One of the reasons I’m supporting Donald Trump this year is, number one, he’s going to put originalists on the Supreme Court, people that believe in fidelity to the Constitution, separation of powers, co-equal branches of government.” So said Sean Hannity, the popular conservative media personality, in a political advertisement for the Republican presidential candidate in September 2016. To the surprise of most pollsters and many political scientists, Trump prevailed, and as promised during the campaign, nominated an avowed originalist (Judge Neil Gorsuch) to the Supreme Court.

The nomination of an originalist from a list of judges compiled by the Federalist Society and the Heritage Foundation is not surprising.The more interesting question is this: how did it come to be that originalism is so readily identifiable to conservative voters such that Hannity can reference it in a campaign commercial without further explanation? While originalism in the legal academy, judicial opinions, and elite discourse is usually narrated as the “original public meaning” of the text of the U.S. Constitution—divined according to what a person of reasonable intelligence and education would have thought the Constitution’s text meant at the time it was written—invocations of the basic crux of academic originalism proliferate on the Right, especially in the conservative media ecosystem. Whether posed as original (public) meaning, original understanding, original intent, founders’ or framers’ intent, these ideas, according to one sympathetic historian, set forth “the core originalist proposition.” (O'Neill 2005). Also integral to the translation of originalism is the narrative of restoring a lost Constitution, the Constitution as law thus non-legal expertise as irrelevant or even deviant, and the persistent theme that the Court is an illegitimate institution that usurps the people’s will. This package of ideas is how conservative constitutional translators, many who are conservative “media activists,” (Hemmer 2016) explain the Constitution to a wider audience unlikely to read a judicial opinion or a law review article.

That is, constitutional translators are mezzo-level elites who take sophisticated constitutional law and legal theoretical ideas and arguments and repackage them for a lay audience in a way such that they are more easily digestible. Given the power of the conservative media ecosystem—consuming conservative media has long been integral to one’s group identification as a conservative, (Ibid.)—it is perhaps not surprising that self-identified conservatives and libertarians are much more likely to subscribe to originalism than the rest of the populace (Greene et al. 2011). But the role of constitutional translators—such as Mark Levin, Charles Murray, Glenn Beck, and Robert Bork’s popular writings in more recent decades, and L. Brent Bozell, James Kilpatrick, and Francis Schaeffer in the 1950s through 1970s (their translation was covered in this post)—in educating the conservative “mass” public has been thus far overlooked.

This is the first of two posts which contain a tentative exploration of how two influential conservative constitutional translators, Mark Levin and Charles Murray, explained the Constitution and helped create a shared constitutional vocabulary for conservatives to grapple with the constitutional politics of the constitutional order ushered in by Reagan. Three particular developmental themes stand out. First, a fear that the country had lost an exceptional past in need of restoration. For some this past was religiously inflected, for others natural rights or “liberty” filled this role. Second, the long-standing critique that when the Court relied on social science (“sociological jurisprudence”) or otherwise relied on (to the conservative mind) non-legal expertise, it undermined the Constitution as law. Earlier constitutional translators, reacting largely to Brown, would blame this on the Warren Court, their compatriots in the federal government—variously known as “centralizers,” socialists, and possibly communist sympathizers—social scientists, the media, and intellectual cum bureaucratic “experts” in Washington.  A more recent revisionist history pushes the narrative of constitutional betrayal back to Woodrow Wilson and the Progressives. Finally, one sees a persistent attack on the Court as an institution: illegitimate, “despotic,” and a “usurper.” Perhaps most salient about this narrative is that the Court has become markedly more conservative since the Warren Court, yet this critique continues to be advanced by contemporaneous constitutional translators.

Part II will focus on delineating a theory of how constitutional translators work to shape American constitutional development and looks more closely at Levin's and Murray's translation for the conservative "mass" public.

Comments

[anon]

YOU refer to " revisionist history."

Now, there's a laughable remark.

I can't think of a better example than that demonstrated above of the "Twittering" mind of the clueless new version of an "intellectual" who seems to devour only popular media (sprinkled with a few bogus citations for show) and draws WILDLY inaccurate and twisted conclusions from a shallow pool of filthy partisan condemnations.

SUffice it to say that no true scholar could or would write anything resembling the above. It is nonsense to suppose that one can lump together individuals and smear them all with the same filthy brush, especially when that brush is dipped in the thin unseemly gruel that is derived from the current partisan pail: these nonsensical conclusions can't cover the lack of preparation and study that is so obvious in these posts, which will therefore wash away very quickly leaving only the faintest odor.

[Doug L]

Calvin is correct. The "originalists" have an implausibly narrow view of language that is understandable by the masses. They do not recognize that, as TS Eliot said, words won't stay in place, they slide, move. The ambiguity of language is too destabilizing for most people to accept; instead, there is comfort in the notion that words map clearly onto objects and stay there, and that meaning can be traced back to one place and the chain of signification stops there. Originalists have a strong sense of conviction, and that is what makes them dangerous.