Balkinization: “Liberal Originalism,” Rest in Peace

“Liberal Originalism,” Rest in Peace

Guest Blogger

Samuel Moyn

Barring its return this fall, Section 3 can safely return to the constitutional oblivion from whence it came. The memory-holing of the events that led to Trump v. Anderson is already beginning, before the Supreme Court’s opinion is released, because the tea leaves are clear already. But the episode bears a lot of reflection. It was a fascinating period for inveterate observers of liberal politics and law. And I think there are some lessons about the limits of certain approaches, including certain interpretative tactics in constitutional law, or even constitutional law itself as a liberal tool.

In case anyone missed it, I wasn’t a fan of the latest stratagem of exiting Donald Trump from our political system. Gloating isn’t my game though. I obviously might have been wrong in my much-reviled view that, in part because of its ambiguities, enforcing Section 3 was a bad move in principle and practice. That key justices both liberal and conservative shared this view at oral argument is hardly sweet vindication. I cannot disprove that the world would have been better off with the disqualification provision enforced. Indeed, it is quite possible that those in favor of banning Trump from the ballot will gloat amid the horror if Trump wins the presidency, and all means of stopping him other than the now fanciful Section 3 mechanism that has obsessed our crowd lately are gone.

But for the moment, the melodrama is worth pondering not for what might have been, but for what was. The Section 3 episode was an astonishing example of how a group of enthusiastic liberals coaxed themselves into believing in legal possibility — indeed, interpretive near-inevitability — only to find the great expectations of the Supreme Court adopting their views collapse immediately and spectacularly.

“The opinion won’t write,” Gerard Magliocca insisted hopefully of the allegedly great difficulty of overturning the Colorado ruling the other day. It is being written right now.

People will now say they were always skeptical about the political viability of Section 3, or were clear-eyed in playing out a strategy, simply to see if it could gain traction. But the evidence to the contrary is too strong. Akhil Amar went justice by justice to explain why it was credible for each one to side with him, in an especially detailed and vivid example of Supreme Court fan fiction. On a Lawfare postmortem, commentator Roger Parloff was most honest, among those I have heard, that he had moved from a position that applying Section 3 was a political non-starter to the position that it was an interpretive inevitability. The same was no doubt true of many others who hoped against hope for a win. That is why liberal (and Never Trump) observers are no doubt so crestfallen and crushed right now, whether they will admit it forthrightly or not.

All things considered, the case provided a good example of an attempt to re-enact on the left what Jack Balkin described years ago as the conversion of off-the-wall to on-the-wall views, a framework he applied so illuminatingly to the NFIB v. Sebelius litigation. Except that the last step was missing. In this case, the Supreme Court did not get sucked into the interpretive dynamic of its amanuenses.

There is a lot to say about this process. But I prefer to make some observations about historians and lawyers, and their attempt to turn historicist legal interpretation to good account for once. It is not that so many allowed themselves, Fox Mulder-like, to believe. I believe in a lot of unlikely futures. The problem was pinning hope on the wrong strategy for getting there. As a result, the cause took the form of historicist claims that were treated as epistemologically certain, and (in part for that reason) practically expected to box in conservatives, not to mention buck up Ketanji Brown Jackson, previously treated as a long-sought paladin on the bench of “liberal originalism.” What does it tell us that it crashed?

Because here is the important thing: this was a test case of a kind. Constitutional scholars of the liberal variety who converged in the political strategy of disqualification were correct in their implicit assumption that, if there was ever a moment to vindicate a liberal form of originalism, and see it do the work it promises, this was it. There was something to coax into credibility, even as other options seemed hard, and the political situation dire. It was no wonder, then, that they were so enthusiastic in joining some conservatives (at least the Never Trump conservatives among them) deploying their house originalism in the campaign.

But for the same reason, the whole approach of liberal historicism and originalism was on the line intellectually and politically, and why reflective observers should now consider whether to ditch it for good. I don’t expect others to agree, but the real significance of Trump v. Anderson is that it is the obituary of liberal originalism — and, I hope, a death knell for liberal constitutionalism.

Part of the reasons for this conclusion are theoretical. The case provides an excellent example of the mistaken starting point that brackets that putatively determinate legal interpretation will generally leave an out. “Offramps” aren’t just the story of this case, but the story of law — and that has enormous consequences for the political strategy of pursuing liberalism by means of liberal originalism specifically, not to mention constitutional law generally.

Some will say that card-carrying historians cannot be expected to register the underdeterminacy of law and its consequences for legal dynamics. It is forgiveable, perhaps, that they would overestimate the relevance of what they know about the past to contemporary legal choices. (This is true even though the list of those who did so is eminent and long: David Blight, Drew Faust, Eric Foner, Jill Lepore, and, perhaps most flagrantly, Sean Wilentz.) At the same time, I can’t help but note, historians suffered their own crisis of overclaiming, even while adopting the pretense that history is not a political strategy — which, like law, it always is. It was fascinating to see Blight, in the MSNBC echo chamber the other night, attack the “instrumentalization” of history on the bench, as if professional historians have some alternative to it. In fact, just like critical lawyers, the best historians have long known that history is politics by other means, even if it is on condition of pretending otherwise in their writings. (This doesn’t mean there isn’t better or worse history, to be clear.)

But the main reason why I think this case is so revealing is practical, and about liberal originalist legal experts and scholars. For Trump v. Anderson proved, if any climactic example could, that deploying constitutional originalism in the service of liberalism — perhaps constitutional legalism generally — doesn’t work, even when the materials are at their most promising.

True, I have always been skeptical of “liberal originalism,” as a concessive strategy that has emerged and surged in dark times. It arose in response to the old adage: If you can’t beat them, join them. But this pivotal case raises the question of what it could ever do for liberalism, even in the most opportune of cases.

It shouldn’t have been surprising that, in oral argument, conservatives embraced a more or less open consequentialism about whether to enforce the alleged original meaning. Bruce Ackerman had written that the conservatives faced “a huge test,” with their integrity on the line if they didn’t follow liberal views of what “fidelity” to the Constitution requires. But far from being placed in a “hard place,” as Wilentz also predicted, the conservatives have never had much trouble dropping originalism when convenient. It should have been obvious all along that originalism is what it has always been, a guise to adopt or drop when convenient. Even as Neil Gorsuch fiddled in his various interventions the other day with textualist reasons to reach the outcome he was always going to reach (although he is the most likely justice to surprise us, as in Bostock v. Clayton County before), the rest of the conservatives came off as more lucid that constitutional law is political choice, with interpretive theory secondary rationalization. Why, then, believe that pretending that originalism could prompt liberal outcomes before reactionary decisionmakers would ever work?

Worse for the liberal stratagem, it didn’t even constrain liberal decisionmakers. The most striking justice in this regard, of course, was Jackson, acidly skeptical of applying Section 3 in this case. Beforehand, liberal historicists had recognized her as their own on the bench. They anticipated a “blistering” dissent (in Ackerman’s term), one for which we scholars will have “given the materials” to make “really powerful” (as Wilentz put it). Well, no. Indeed, the amazing thing about the oral argument was just how hilariously nonchalant Jackson was with regard the mass of historical materials by lawyers and non-lawyers she had been furnished; she even had Trump’s attorney Jonathan Mitchell disclaiming “law office history” to avoid using history to serve his side so crudely.

But whatever her liberal originalism to blunt the effects of conservative hijinks in the future — it is a good strategy for someone in her position — it was even more striking that Jackson came out as a democrat in this case. In doing so, she adopted the (correct) view that constitutional law is routinely underdeterminate, and perhaps strategies that implore judges in high places to take over our role as citizens in making the biggest calls are the problem, not the solution. “If there's an ambiguity,” she asked, “why would we construe [the Constitution] against democracy?” The alleged liberal originalist asked the right question about constitutional law generally.

The Section 3 episode will be forgotten, a footnote to the 2024 election. But for all its brevity, there is a lot to ponder in it. “The nation is talking about little else,” I read on Amar’s website a couple of weeks ago, amid the wall-to-wall legal coverage of Section 3. Soon people will talk about other things. But in doing so, they might miss the chance to learn about the limits of liberal originalism as a strategy. For better or worse, I am sure we will have many other occasions to ask ourselves whether the entire project of pursuing our best political future through the constitutional politics of asking high court judges to take our side — as opposed to democratic political struggle to achieve our goals — is either credible or practical.

Samuel Moyn is Chancellor Kent Professor of Law and History at Yale University. You can reach him by e-mail at samuel.moyn@yale.edu.

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