Tuesday, November 29, 2011

A Reply to Jack

Gerard N. Magliocca

I want to respond briefly to Jack's post, though I would like to think more deeply about his points over the next day or two. It is true that I am not an originalist, and it is also true that Jack's account of originalism is gaining traction in the academy. Now he asks why I should care about what originalism is (at least before I convert to the true faith).

The answer draws from Pam Karlan's observation that originalism is undergoing a form of genericide. In trademark law, a brand becomes generic if it comes to refer to the class of goods itself (e.g., aspirin used to be a mark for the product and now just is the product). That's harmful primarily to the brand owner that loses its powerful trademark rights, but it could also be harmful to the public by robbing it of a clear differentiation between products. (Indeed, courts have been hesitant in recent years to declare an established mark generic.)

Personally, I think that there is considerable value in retaining a sharp distinction between constitutional theories (Practice is a different matter, since courts almost never use a consistent theory.) It just seems to me that once anything can be labelled as originalist, then that term is no longer useful and may just obscure the truth. Perhaps my desire for conceptual clarity is a fool's errand, as Tom Colby's work establishes that the definition of originalism has never been stable. I'm not convinced, though, that I am wrong. Alas, as it is after midnight, I am convinced that I'm done for the night.)

If you'd like to read Pam's essay that addresses this issue, here is the link


I anxiously await Gerard's further thoughts on Jack's rejoinder "Why Sigh? ... Originalism." But let me respond to Jack's challenge of Gerard that Gerard as a non-originalist does not have a dog in the fight.

Jack should appreciate that the Constitution and how it is interpreted/construed according to whatever theory du jour is the Constitution of both originalists (of all stripes) and non-originalists alike. So indeed Gerard and other non-originalists have a dog in the fight. Jack has gone through some recent conversions that seem to have "improved" originalism. But is originalism truly the promised land of constitutional interpretation/construction? In reading Jack's post one may posit that Jack is indeed a constitutional wugwump as he can't seem to fully abandon living constitutionalism. I recall from my college days so many, many years ago the description of a mugwump as someone sitting on a fence with his mug on one side and his wump on the other. Maybe Jack will come down from that fence if enough non-originalists sic him as well as the usual suspect originalists - and there are plenty of us non-originalists. Jack should keep in mind that his conversion has not been fully accepted by the usual suspect originalists, although Jack seems to believe that he may convert them to his version as sort of a second (or third? fourth?) coming. But the Holy Grail of constitutional interpretation/construction remains elusive. There is a need for the dogs to bark.

"But Gerard is not himself an originalist."

Pretty nervy for a guy who isn't, in the opinion of other originalists, himself an originalist. Just a living constitutionalist bent on committing that genericide Gerard refers to.

And, I get more and more convinced, consciously so.

The Karlan essay is interesting.

"But because originalism seems to offer a principled basis for constitutional interpretation, it has become a tempting brand for scholars and jurists of all stripes to invoke."

As Karlan notes, the result "misleads" in various cases, since whatever "seems" to be the case, things tend to be more messy as applied. This is in part because:

"To the contrary, there has never been a single clear-cut, legitimate, and timeless method of interpreting the Constitution."

It is misleading to argue otherwise. The attempt here to put forth a limit to "originalism" was challenged because it didn't seem to work well. Karlan's reference to the film "Clueless" is telling: Jane Austen's "Emma" is "weakly" expressed there. If things are going to be so open-ended, it is an artificial brand.

If Coke and Pepsi are not that "different" after all, making one the only legitimate form of refreshment as some backers of "originalism" suggests is problematic. They might be different somewhat, but truth in advertising merits us to realize they are a whole lot less different than some over the top claims.

"Originalists" tend to claim too much. "History" is one factor in interpreting the Constitution, itself a bundle of things. I think it is a perfectly fine mode of constitutional interpretation. If we need a "brand," I'd cite "history" over "originalism."

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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.

Indeed. I suspect that this might be a purpose of recent proposals watering down original meaning theory to propositions so broad that any living constitutionalist penumbra could pass muster.

In Jack's yet further response to Gerard, he includes this:

"I have just published a book, Living Originalism, from Harvard University Press, which argues that the best versions of originalism and living constitutionalism are compatible, and that to the extent they are not compatible, they are not very good theories of constitutional interpretation. Thus, in this book I am critical both of originalists and nonoriginalists."

So to a certain extent, this demonstrates Jack's mugwumpishness or he is working both sides of the constitutional canal on interpretation/construction. I realize that Jack is not allowing comments on his posts and perhaps he is ignoring comments on Gerard's posts. But while Jack challenges Gerard as not having a dog in the fight on originalism, Jack clearly has a dog in the nonoriginalist fight.

After all, atheists and agnostics have a dog in the fight against religion and vice versa. And Jack should keep in mind that in the originalist community, he is considered somewhat of an outlier (perhaps in the nature of some christian groups' view of Mormonism as a cult). So as this discussion continues (assuming it does), Gerard does have a dog in this fight. Can Jack accept this?

But, what does "religion" mean?

U.S. v. Seeger suggests a broad definition and even Michael Newdow is a "minister" of the Universal Life Church.


"Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values."

Some think Catholics don't really have "religion" since that only means the true path to God. Unitarians were challenged by a Texas official as not really a "religion" not too far back.

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