Balkinization  

Tuesday, November 29, 2011

Why Sigh . . . . About Originalism?

JB

Gerard's post Sigh . . . Originalism proposes a test for what should properly termed originalism: "an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified."

But Gerard is not himself an originalist. So why is it valuable for a non-originalist to tell originalists who is authentic and who is not? This would be a little like a Jew telling various sects of Christianity which are *really* Christian and which are merely poseurs. Why does he have a dog in this particular fight?

Moreover, Gerard's test of originalist purity seems peculiarly unmotivated. It's not clear what is really at stake in choosing this test rather than another. There are several different arguments in the literature for adopting the various forms of orignalism, but Gerard's test doesn't seem to have much to do with any of them. His test, at least on its face, does not seem to promote or secure (a)democratic legitimacy, (b) fidelity to the rule of law, (c) the promotion of a transgenerational plan for politics that connects different generations as a single people; (d) the ability of ordinary citizens to feel that the Constitution belongs to them and not to judges; or (e) judicial restraint. If Gerard means to connect his test of "real" originalism to one of these accounts, he needs to spell out in more detail how he makes the connection *and* why his test is *superior* to those theories in achieving the goals that originalist theories seek.

Gerard seems to be upset that people who *believe* they are originalists are making claims that Gerard doesn't think are *really* originalist. He tells us that he wants to put a "meaningful limit" on originalism. But again, why does he care? What is at stake for him? And why is it important that *non-originalists* put a meaningful limit on originalism?

Suppose it turns out that somebody--let's call him Randy Barnett--rethinks the theory of originalism and comes up with a version that has surprising results, which he then insists is a better version of originalism than the ones currently on offer, and he then argues that other originalists should adopt it. What, precisely, is wrong with this intellectual task? Why is this not what legal theorists are supposed to do? Perhaps more to the point, what is offensive or worrisome about it to non-originalists like Gerard?

Perhaps Gerard is worried that everyone someday will claim to be an originalist and then originalism will mean nothing. I can see why *originalists* might be concerned at this state of affairs, but this should hardly trouble a non-originalist. Indeed, one would think that many non-originalists would be pleased.

Perhaps the concern is precisely the opposite--the real point of the "We are all Keynesians now" remark. Gerard worries that if enough people claim to be orignalists-- even people who make arguments that don't seem at all originalist to him--people who are non-originalists will feel increasing social pressure to say they are originalists and to make arguments that look and sound originalist so that they can be taken seriously in legal publications and in legal briefs. But there seems to be little danger of everyone becoming an originalist-- most judicial decisions aren't self-consciously originalist, and neither are most law review articles, even after decades of originalist writing.

Moreover, if the New Originalist theories of people like Barnett, Solum, and myself become increasingly accepted as legitimate or plausible to our fellow originalists, it's not clear how living constitutionalists are thereby harmed. This is especially so given that I have repeatedly made clear that my views are also a form of living constitutionalism. The concern seems to be a little like a heterosexual person being opposed to gay marriage on the grounds that if enough gay people get married it will harm heterosexual marriage.

The more important issue, it seems to me, is that the expansion of originalist arguments in recent years has led to a very interesting intellectual debate *among originalists* about methodology. It is, I think, an exciting debate, full of interesting and unexpected twists and turns. As an originalist, I have a dog in that fight, and I believe that I can show why my version of originalism, framework originalism, offers the best account of our practices of interpretation and constitutional development. I know that many of my fellow originalists do not currently agree with me, but I believe that in time I will either convince them or that their views will move closer to mine.

Indeed, the very developments that Gerard laments seem to indicate to me that either my account or that of other New Originalists is gaining increasing acceptance in the scholarly literature. Steve Calabresi and Julia Rickert's recent article on originalism and sex discrimination, which Gerard mentions, is one example. I can well understand why originalists with rival views would object to these developments, but I find it hard to see why *non-originalists* should be particularly aggrieved.

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