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Monday, November 07, 2011

Originalism Owns the Eighteenth Century: An Essay with A Compulsory (Voting) Exercise

In the Sunday NYT, Reid Hoffman, chairman at LinkedIn, is quoted as saying “[e]ntrepreneurs ... often spend too much time creating products and too little figuring out how to get people to use them.” This probably applies as well to scholars. Even in the relatively open, interdisciplinary world of the law school, our scholarship can get specialized enough that many colleagues (never mind the public at large) may not follow the broad contours and insights of our subfields unless we give them a lever or two. Not that the value of accessibility should always trump the competing values. But some levers, sure.

These levers may be, partly about the marketing, partly about the design. On the marketing, many of us have heard the message to have at the ready a short ‘elevator ride’ pitch about our scholarship. This is advice I try to follow. But, at least for my late-eighteenth-century work on election law, I still run into a messaging problem--that many academics glean too much meaning when I identify my historical period. Late-eighteenth-century? Then of course the work is originalist in method and purpose. Some audiences go further with the historical cue, apparently assuming that eighteenth-century scholarship is not only originalist but also tied into a hidden conservative political agenda. Before I can get across that, well actually, my work approaches the founding more from the perspectives of social-science history and the history of political thought, the ‘elevator ride’ may be over.

I find the eighteenth-century-to-originalism-to-political-conservatism cascade of assumptions odd. After all, there are now originalists of all political stripes (a Jack Balkin or Akhil Amar for a Robert Bork or a Justice Scalia). And there are originalist scholars of integrity of various stripes who are quite serious about their primary sources and who are not narrowly results-oriented (not to deny there's also a stream of the cringe-worthy ‘forensic history’ in the journals). Then (like me) there are constitutional historians who write on the eighteenth-century but who are not (or not primarily) engaged with originalism or with any approach to contemporary constitutional interpretation (think, perhaps, of Mary Sarah Bilder, Dan Hulsebosch, Alison LaCroix).

However, I can’t say for sure that the cognitive short-cuts are non-adaptive for most purposes. The Legal History Blog (one of my favorite reads, by the way) even uses as one of its subject-matter labels: “Originalism & the founding period.” It has no labels such as “Originalism & the post-Civil War amendments”, “Cultural History & the founding,” or “Economic modeling & the founding.” Originalism & the founding are monogamously paired, while “Ancient law,” “Medieval law,” and “14th amendment” get to be stand-alones. I imagine this labeling practice responds to some reality that’s ‘out there.’

There may be other subjects of legal scholarship that elicit equally-tight audience expectations, but, if those of you working in other areas often encounter this sort of thing, I’m not aware of it. Maybe the simple information that a scholar has written on sexuality and gender will trigger in some audiences an expectation of political liberalism and identity politics? (Unless there’s also a mention of natural law? Then the opposite assumption?) If I meet an environmental law prof, maybe I suspect she’s a person who spends her weekends hiking and rafting, and maybe also, I have mild expectations she’s not strongly de-regulatory in her politics, but this is about as far I go with the cues based solely on subject-matter.

What to do if the cues mislead? I’ve been encouraged to preemptively incorporate criticism of originalism into my spiel. But this feels too much like: “I am not now, nor have I ever been X.” Anyway, my historical writing (to date) simply isn’t designed to take a stand on approaches to constitutional interpretation today. It’s geared more towards explanation and understanding of some political and legal features of our world, and the sometimes-patterned ways in which they’ve changed over time. Rather than continue with the corrections, though, I’m wondering if I should quit fighting the fact that ‘Originalism Owns the Eighteenth Century’. Maybe a user-friendly lever would leverage rather than resist expectations?

Marketing may not be a strong suit for scholars. Certainly, it’s not for me. Yet I’d like to think that, if we fashion the user-friendly marketing lever, maybe we can be more stubborn about not compromising on the deeper design choices.

My marketing practice for today is to imagine I’m sketching an essay in response to another piece from the Sunday Times, this one a thoughtful op-ed by William Galston in favor of compulsory voting.http://www.nytimes.com/2011/11/06/opinion/sunday/telling-americans-to-vote-or-else.html

After his policy argument, Galston winds down with a concession that:

"[T]he United States Constitution gives the states enormous power over voting procedures. Mandating voting nationwide would go counter to our traditions (and perhaps our Constitution) and would encounter strong state opposition."

What Galston doesn’t mention (something I don’t believe I’ve ever seen mentioned in a treatment of modern compulsory voting) is that several of the American colonies had a history of compulsory voting (including some laws that were enforceable by fines that could be levied either on individuals or on towns), and that a compulsory-voting tradition was sufficiently salient in Massachusetts during the U.S. ratification that a few ‘name-brand’ founders made reference to it in their argument for empowering Congress to regulate congressional elections under the Congressional Elections Clause (article I, section 4, clause 1). More generally, Galston’s emphasis on the states’ (not Congress’s) constitutional power over voting procedures is entirely conventional today, but is not an easy fit with the way the federal right to vote was often described during the U.S. ratification debates as, well, a federal right.

Playing to the ‘18th century = originalism’ audience expectations, I could work on developing my own views about constitutional authority and then take a stand on what role the early history should play in constitutional interpretation today. But I’m not sure I have to do that. User-friendly marketing might just mean an originalism-tease--that I raise the possibility that the early history should have sway. Then I use any attention garnered to divert audiences to some of my interpretive and explanatory concerns. (How and when did we change from a political culture when mandatory voting was plausible in some colonies/states to a libertarian world in which it is un-American? When and why was the federal understanding of the federal right to vote forgotten? What features of modern political parties suggest that Galston’s right to think that opposition to a congressional mandate for mandatory voting would be very dramatic?) Of course, by the time I’d get through one of these social-science-y or political theory questions, I’d be long past an elevator ride or even a blog post.

Posted by Kirsten Nussbaumer on November 7, 2011 at 10:52 AM in Constitutional thoughts, Culture, Current Affairs, Law and Politics, Legal Theory | Permalink


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