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Friday, September 21, 2007

Dissing Originalism

Did anyone catch this somewhat bizarre article by Reva Siegel & Robert Post in TNR this week?  I'm all for opposing "liberal" originalism.  And I even think originalism as a theory of constitutional interpretation is unattractive, whether it is conservative or liberal.  But something about their account of the appeal of originalism seems dishonest:

Some advocates of progressive originalism assert that originalism carries unique authority because it depicts judges as neutral umpires bound to apply disinterested rules of law. But this account of originalism's appeal is flatly wrong. Originalism rose to prominence in the Reagan era because, as Edwin Meese put it in an uncharacteristic moment of candor, it promised to remake the Court in a way that would halt the slide toward "the radical egalitarianism and expansive civil libertarianism of the Warren Court." Originalism was successful because it implicitly pledged to reconstitute the Court in ways that would entrench conservative values in matters of faith, family, race and property. Wherever the theory of originalism produces results that are inconsistent with this pledge, it is blithely ignored. Voters are not attracted to the discipline or jurisprudence of originalism; they are drawn instead to its capacity to reshape Supreme Court precedents into a "living constitution" for right-wing convictions.

Really?  Undoubtedly, this account of the success of originalism is right in some cases -- though just because some historical explanation helps describe a theory's "rise to prominence" doesn't necessarily mean that explanation does any work to describe its current appeal.  Indeed, I'm not sure the historical explanation -- which I will assume to be correct, though it too is contestable -- does explain its current appeal.  Obviously, many professors and well-educated lawyers embrace originalism today for reasons that have little to do with a Republican policy agenda.  More importantly, however, I'd give "voters" a bit more credit too: many are perfectly capable, as we are, of obsessing about the so-called countermajoritarian difficulty and many are perfectly capable, as we are, of distinguishing interpretive preferences from political policy preferences.

In short, I think Post & Siegel will need to concede that originalism has some of the virtues they are hoping to deny -- and provide reasons to reject it anyway.  Some of that they do later in the column.  But I don't think their causal story about originalism's rise to prominence helps their case much. 

Posted by Ethan Leib on September 21, 2007 at 12:00 PM in Article Spotlight | Permalink


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Tracked on Sep 21, 2007 7:30:09 PM


Even if voters are attracted to the ideal of originalism they should be wary that in practice originalism offers no more constraint on a judge or justice than any other principle or modality of decision making. One is only limited by ones capacity to be selective in choosing facts and to interpret those facts. Many judges and justices have demonstrated a both remarkable ability to be selective to interpret their selections.

Even as an ideal I, a voter, do not find originalism appealing.

Posted by: Jim Green | Sep 24, 2007 10:15:29 AM

Voters are not attracted to the discipline or jurisprudence of originalism;...

I think that is dead wrong. I think that is exactly what attracts lay voters to the ideal of originalism.

We imbue our courts with a frightening amount of power. In no other part of our political system do individual office holders possess so much power with so little counterbalance or individual consequence. The most contentious of the last 40 years have been decided by 5-4 supreme court decisions.

Only an adherence to precedence controls the courts. When the courts began to disregard precedence in the 50's-60, it scared the crap out of a lot of people. I think that the ideal of originalism appeals to people because they believe it will restrain the otherwise unrestricted power of the court.

Lawyers can debate all they like but for lay people, the absence of an adherence to the original or historical intent of the constitution means that highest courts of the land become places not of the scales of justice, but houses for the thrones of kings.

Posted by: Shannon Love | Sep 23, 2007 12:28:53 PM

Actually originalism was first practiced in in a big way in 1803.

Posted by: M. Simon | Sep 22, 2007 1:24:06 AM

The debate over whether or not liberals should endorse originalism misses the point. Locating the origins of the theory's popularity, a diagnostic question, also misses the point. Originalism AS IT'S ACTUALLY PRACTICED is not a procedural but an instrumentalist approach. There's no there there. Originalism is a slogan, not a philosophy - which is why even its advocates are not really its practitioners. Originalism is a basketcase of self-contradiction, and nobody can or should put it into practice because it would produce wildly inconsistent and uncanny results that would please nobody. Scalia et al. are actually practicing "just another" results-based judicial calculus, just like Siegel and Post, and just like Breyer and Ginsburg -- each calculus with a different political flavor but none of them "originalist" in any coherent sense. Call originalism the emperor with no clothes, call it the little man behind the curtain, call it much ado about nothing... the point is that we are all really just interested in results.

Posted by: aaron | Sep 22, 2007 1:09:04 AM

The mistake of the article is that "originalism" would not and could not remake anything that the conservatives desired. Instead, it shifted the power to make policy decisions away from the courts and their liberal tendencies back to the legislatures that had much more conservative tendencies.

The entire argument really boils down to to what degree we want policy decisions decided in the legislative arena versus the judicial.

Posted by: Mark | Sep 21, 2007 10:32:53 PM

It seems to me that the first problem with S & P's argument is that it presumes that one can attack the validity of a consitutional theory based on that theory's origin, or the reason that the author(s) created it. This is really just an elaborate ad hominem.

We get it, S & P, you don't like Ed Meese. Now tell us a *good* reason why originalism doesn't "depict[] judges as neutral umpires bound to apply disinterested rules of law."

Posted by: Joel Smith | Sep 21, 2007 5:37:36 PM

One can think Americans are smart enough to grapple with the countermajoritarian dilemma and interpretative theories, and still be skeptical that they are, in fact, doing it. I know plenty of extremely smart people who, if they so desired, probably could work through how they want to deal with those issue. But outside a few of my fellow law geeks, they don't. They have other things to do, and just because we like to play around with these issues in our spare time doesn't mean we should project our idiosyncrasies on other folk. I think S & P are fundamentally right -- there is very little evidence that popular approval for "originalism" stems from very much else than a belief that it gives folks the results they want. And if, as I relayed in my Madison's Tomb chronicle, a group that is nominally originalist was to discover that originalism no longer supported a critical legal-political objective of theirs (in that story, pro-lifers finding lost notes of the constitutional convention indicating that the 9th Amendment was understood to protect a right to abortion), they'd jettison it without blinking an eye.

Posted by: David Schraub | Sep 21, 2007 5:03:07 PM

I've never been parried so succinctly or flatteringly before. Touche.

Posted by: Andrew Siegel | Sep 21, 2007 2:51:11 PM

The only thing I disagree with is that P and S made that argument -- or made it as elegantly and clearly as you did.

Posted by: Ethan Leib | Sep 21, 2007 2:17:22 PM

I read the Siegel and Post article very differently than Ethan. To me, their central argument is that--whatever the virtues or defects of originalism--it has captured a privileged position in popular debates over constitutional interpretation through a (probably intentional) sleight of hand. For most of American constitutotional history, the dominant method of interpretation was inclusive, pragmatic, and evolutionary, invisioning each case as part of a longstanding American conversation about the proper application of the document's broad phrases. Since roughly 1980, a narrower method of interpretation (privileging one modality of argument and one generation of our ancestors over all others) has claimed such prominence that other forms of argument and interpretation require an elaborate justificatory preface. The process by which we have reached this bizarre state was primarily cultural and political, not academic. Even the acdemically-phrased argument positing orignalism as an answer to the counter-majoritarian difficulty was really a political or cultural argument rather than an intellectual one, as (1)orginalism has proven little or no more constraining to its alleged practioners than other methods of interpretation and (2) to the extent that it is constraining in a small subset of cases, it constrains the jurists who practice it to reach exactly the results they would want to reach in the first place.

Reminding the American people (1) that originalism as an overarching theory is largely a development of the last quarter century; (2) that its rise to prominence was in large measure part of an explicit political campaign by the Reagan right; and (3) that it has pushed us towards a mean-spirited and stilted constitutionalism without doing much to constrain judicial arrogance or value-judgment strikes me as a much better strategy for the left than the cynical embrace of originalism proposed by the Ryan article they are responding to.

Posted by: Andrew Siegel | Sep 21, 2007 1:59:01 PM

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