an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Conservative Movement’s “Goldilocks” Originalism
Most of the discussion of originalism as an interpretive method is part of a professionalized debate amongst law-school-based normative constitutional theorists. But, of course, originalism is also enormously important as a strain of the constitutional politics of the conservative movement, where it is used to help forge movement identities and motivate political participation. As it lives in movement politics, there are important strains of originalism that operate on a different axis entirely from that orientating (most) legal academics.
One of the most influential of these is what I will call “Goldilocks Originalism.” Conservative “Goldilocks” originalists do not orient themselves (in the first instance) in opposition to “living constitutionalists,” but rather in opposition to secularist, positivist, relativist, liberals and progressives. To these movement originalists, the fatal flaw of their antagonists is not that their constitutional theory leaves judges, in ruling in cases, unrestrained in imposing their politics rather than following the law (though Goldilocks originalists certainly believe that to be the case, and often say so), but rather that that the constitutional theory of their opponents severs the tie between our perpetually besieged nation and the only anchor that will truly hold -- the belief in (a Christian, or Judeo-Christian) God. In this, as they see it, the Founders, and the Founders’ Constitution, are squarely on their side. The axis of opposition constructed by the conservative movement between those who revere the Founder’s (God-anchored) Constitution, and the secular, relativist, progressives is omnipresent on the contemporary political Right -- at the grassroots, to be sure, but also in a scholarly literature, not written, for the most part, by law professors, but rather by theologians and political theorists. There are three wellsprings of this vein of conservative originalist scholarship: 1) Evangelical Christianity; 2) Catholic Natural Law; and 3) Straussianism. Indeed, a highly ideological originalism that girds itself for battle against Godless secularism and relativism is what holds these three groups – which, historically, had long often been at each other’s throats – together, as compatriots in an effective political coalition.
The orientating axis I have described is evident everywhere in the constitutional thought of influential evangelical conservatives – but I will focus here mainly on the other two wellsprings. Straussian political philosophers – students of the émigré University of Chicago philosopher Leo Strauss (1899-1973) (and students of students, and, now students of students of students) are often taken to be atheists – it is hard to tell, in many cases, for, even if you ask them, given their beliefs about esotericism in philosophy (the threat posed by true philosophers the extant political order), you can’t trust their answers. For our purposes, I will note that one of their animating tropes is the indispensability of reconciling “Athens and Jerusalem” (or, put otherwise, “Reason and Revelation”) in the construction of a just and good political order. In Straussian Harry Jaffa’s highly influential account in Crisis of the House Divided (1959), Abraham Lincoln’s world-historical accomplishment was in doing just that, by incorporating the opening lines of the Declaration of Independence into the U.S. Constitution – thereby redeeming the American Founding, which was all but fatally compromised by its acceptance of chattel slavery. Much of contemporary Catholic constitutional thought, beginning with John Courtney Murray’s We Hold These Truths (1960), holds that Thomist theology has itself successfully reconciled Reason and Revelation, or, put otherwise, that the Rome is situated at the ideal point between Athens and Jerusalem. (In recent work, the influential Catholic political philosopher Peter Augustine Lawler has accordingly offered Thomism to the United States as the “just right” common ground for evangelicals, whose emphasis is on Revelation alone, and secularists, who prize Reason above all). In all three perspectives, what is distinctive about the American political and constitutional tradition is that (through the Founders, through Lincoln, through the work of America’s “accidentally Thomist” Founders (Lawler’s pregnant characterization)), it has arrived at the Goldilocks “just right” solution to the central problems of political and moral life.
This, for many Constitution-venerating conservatives, is the great achievement of the American Founding, of Lincoln, of the (Christian) United States. And it is precisely this achievement that the reason-worshipping, secularist, positivist, relativist, liberals and progressives (purportedly) spurn -- with consequences that are all too plain to see (an out-of-control socialist state, abortion-on-demand, gay marriage, government control of health care, etc.).
These social movement actors -- popular and scholarly -- are more than capable of spinning this constitutional outlook as “originalism,” which, in some sense, it is. But this form of movement originalism is very different from the legal originalism that law professors typically debate. That said, law school originalism and this movement-based Goldilocks Originalism buttress each other. Each has played a major role in the ascendency of contemporary constitutional conservatism.
Goldilocks Originalism emphasizing the degree to which, properly understood, the U.S. Constitution strikes the perfect balance between Reason and Revelation, doesn’t get much attention in the law schools. But, if we want to understand contemporary American constitutionalism, I think it is a least half the story… and maybe more. Posted
by Ken Kersch [link]