Friday, February 19, 2016

Why Originalism Will Not Fade Away


Eric Posner argues that, without Antonin Scalia on the Supreme Court, originalism will gradually fade away. Why would law professors and litigators spend their time making originalist constitutional arguments given that the key players on the Court don't really care about originalism, and the only Justice who does care, Clarence Thomas, goes his own way?

Larry Solum disagrees, but his arguments are more normative than predictive. He points out, entirely correctly, that one should work on developing the ideas one truly believes in, even if they may only have influence in the far future.

Since my own constitutional theory is a synthesis of originalism and its purported opposite, living constitutionalism, I have a dog in this fight. But I will limit my remarks to the positive or predictive question.

1. Originalism is more than a theory of constitutional interpretation. It is also a common language for political conservatives to talk about their constitutional values.  Amanda Hollis-Brusky's book, Ideas with Consequences, showed how the Federalist Society adopted originalism as its common language and unofficial interpretive theory (the society takes no official positions) even though many members of the Federalist Society are not originalists and never will be.

Even if Justice Thomas retired tomorrow, so that there was not a single originalist on the Court, the conservative movement would still continue to exist, and would continue to be a substantial force in American political and intellectual life. Conservative think tanks, lawyers, and law professors will continue to talk, write, and argue in originalist terms, because originalism continues to provide them a common way of thinking about the Constitution and solving particular legal problems. The conservative movement is not about to abandon originalism, and as long as there is a conservative movement in the United States, you can predict that originalism will remain a powerful force in legal argument.

2. We need to distinguish between originalist arguments-- arguments that appeal to original meaning, intention, or understanding-- and originalism as a comprehensive theory of constitutional interpretation. I have stated many times that as a comprehensive theory, originalism is largely an American product and remains a minority position even in the United States. It arises from features of American national culture. But I have also pointed out that originalist arguments pop up everywhere in the world. You can even find them in Canada, home of "living tree" constitutionalism. It's just that in other countries (with the possible exception of Australia), few legal scholars and judges adopt originalism as a comprehensive constitutional theory.

Whatever one may say about originalism as a comprehensive theory, originalist arguments are here to say. Originalist arguments have been commonplace in the opinions of the Supreme Court of the United States from the country's inception, even if very few Justices have adopted originalism as a comprehensive theory. That is because most Justices do not have comprehensive theories of constitutional interpretation.  By my count, there have been only three originalists in the modern (post-1937) period-- Black, Scalia and Thomas. (Rehnquist was not really an originalist although he gave it lip service in a famous essay in Texas Law Review.)

All Justices are happy to make originalist arguments when it suits their position. That practice will continue. (I call this "kitchen sink originalism," i.e., in order to win the argument, you throw in everything but the kitchen sink.) And if, like Philip Bobbitt, you believe that constitutional discourse is structured in terms of standard tropes and forms of argument, that is exactly what you would predict.  Because all of the various kinds of originalist arguments are standard forms of legal argument, people will continue to make them. Therefore, law professors, lawyers, and think tanks will continue to churn out originalist arguments for use by the Justices, even if there is not a single Justice committed to originalist interpretive theory on the Court.

3. As long as judges or Justices want to discard lines of precedent-- and they always will-- they will find originalism a useful device. That is because originalism-- and the trope of return to origins--is often most useful not in preserving the status quo but in advocating for change, often radical change.

I have pointed out on numerous occasions that judges and Justices often turn to originalism (even in abstract or tendentious ways) when they want to overturn established lines of precedent.  That is because originalism provides a countervailing source of authority to precedent. Alfred Kelly pointed out that the Warren Court turned to originalist arguments because they wanted to promote a civil liberties agenda. He noted that many important Warren Court decisions overturning precedents were often accompanied by citations to founding era materials.

Brown v. Board of Education is the most interesting case. We remember Brown today as a statement of living constitutionalism, and for Chief Justice Warren's statement that we cannot turn back the clock to 1868. But that reflects how the case was finally written, and not what Warren actually hoped to do.  The Justices asked for evidence of original understanding in the re-argument to Brown v. Board of Education. They wanted to use originalism to overturn Plessy v. Ferguson. They were unable to find enough evidence to justify an originalist opinion. But there is no doubt in my mind that if they had found the evidence, Chief Justice Warren would have used it instead of relying on social science. In fact, I joked the other day that if Michael McConnell had clerked for Warren in 1954, Brown would have been written as an originalist opinion.  Too bad Michael wouldn't be born for another year!

Therefore we may predict that even a solidly liberal court will use originalist arguments whenever it suits them to do so. Frank Cross pointed out that citations to adoption history increase markedly during the Warren Court years. That is not because the Warren Court was full of originalists (except for Black, who was a towering figure on that Court) but because the Warren Court had to get rid of a lot of older precedents that it thought were incorrect. I predict that we will see no end of originalist arguments if we ever get a liberal Court in the future.

When this happens, the pundits will gasp, arguing that this means that Scalia has won. That is because they don't understand the difference between originalist arguments and originalism as a comprehensive theory, and they don't understand how originalist arguments are actually used by the Justices-- not to preserve the status quo but to disrupt it.

4. Judges make originalist arguments whenever they face a question of first impression, or a situation in which precedental materials are sparse. Recently Jamal Greene has argued that judges often use originalist arguments whenever they are construing a piece of constitutional text that looks to them like a rule but is ambiguous.  If so, then there will be plenty of possibilities for originalist argument in the future, even among non-originalist Justices.

5. Finally, we should distinguish originalism as a comprehensive theory of constitutional interpretation from political originalism-- the invocation of the founders in political arguments, and from cultural originalism-- the almost religious reverence that Americans have for  their founding generation.  There is no reason to think that either political originalism or cultural originalism will depart along with Justice Scalia.

As long as political and cultural originalism remain firmly lodged in American thought and American rhetoric, originalist arguments-- no matter how badly done-- will remain a staple of legal argument. That is because legal argument, and law itself, is always shaped by the larger political culture that surrounds it.

And as long as Americans disagree with each other about the future of their country, they will continue to invoke the founders and their values as a justification for their position, and assert that their opponents are betraying the founders and their values.  The more heated American politics becomes, the more likely it is that people will make these arguments.  America politics is pretty heated right now, and looks to be for some time to come. I doubt that this is the moment when people will start to abandon originalist rhetoric or originalist justifications.

In short, Eric's prediction that originalism will fade away is, I believe, wishful thinking.  Originalism rests on powerful forces in American politics and culture. Those forces will not fade away any time soon.

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