Thursday, February 23, 2017

Originalism as Old and New, Part II

Richard Primus

Four days ago, I posted in this space some reflections about a very good conference I’d just attended at the University of San Diego Law School’s Center for the Study of Originalism.  The core of my reflection concerned a hypothesis I developed over the course of the conference: that there has been some movement in recent years among leading originalists toward the view that originalism hasn’t yet really been tried out in American courts.  Holding in abeyance the question of whether that hypothesis is correct—I didn’t do a survey of the thirty or so originalists at the conference, and I wouldn’t know how representative that group of thirty is of academic originalists overall—I then offered some thoughts about what would be interesting about movement toward that perspective among originalist theorists.

I’ve gotten various feedback to that post: some agreeing, some criticizing, some speculating further.  But one note of feedback seems to me to be worth reporting to the audience for these posts.  After my first post, two or three originalists who had attended the conference got in touch with me to let me know that they, personally, do not subscribe to the originalism-has-never-been-tried view, and one or two of them ventured further that they think I overestimated the number of people at the conference who do.  In a more recent post, John McGinnis—one of the prominent originalists at the conference I attended—has also come forth to say that I overestimated the incidence of the never-been-tried idea.  Given this feedback, I should take seriously the possibility that I did in fact overestimate.

It’s certainly possible.  I heard the idea articulated, in a few different forms, by (I think) five people at the conference.  But given the perceptions of others who were there, it’s possible that I overread the significance of that observation, in any of the following ways: (1) I extrapolated from what I heard, figuring that the people I heard from probably weren’t the only people at the conference to hold forms of that view.  But maybe I overextrapolated; maybe I happened to hear from everyone, or close to everyone, who has something like that perspective. (2) Maybe the originalists who report that the position is not on the rise are working from a different (and perhaps better informed) baseline than I am.  Maybe people who attend originalism conferences regularly were already accustomed to whatever the incidence of this idea is among originalists, and I saw as an uptick what to them is simply the status quo.  And then of course there are questions about the ability of insiders and outsiders to read a culture.  Sometimes insiders can better read what is actually going on in a community; sometimes it takes an outsider to notice something that insiders haven’t.  Which of those dynamics was more in play in this case, if either, isn’t something I’m qualified to judge.  But in any event, I’m grateful to those who reached out with the feedback, which should (and does) induce in me a healthy skepticism about my hypothesis of an uptick.

Of greater interest to a general audience than my perceptions, though, is the underlying set of issues about the ways in which originalism is old, new, or some combination of both.  To a considerable degree, I agree with McGinnis when he says that the practice of arguing from original meanings has waxed and waned over the course of American history and that it is today one of several contending approaches to constitutional jurisprudence, rather than being either alien or dominant.  I certainly agree that anyone who thinks American judges have never reasoned about constitutional cases by appealing to original meanings would be misreading the historical record, and not by just a little.  

Where I may differ from McGinnis is in certain judgments about how predominant originalism was at specific past times.  Quoting Madison and also Howard Gillman, McGinnis identifies originalism as present at the Founding and asserts that nearly all constitutional interpreters appealed to original meanings until the time of the twentieth-century progressives.  McGinnis is right, of course, that Madison and Gillman said what he says they said.  I have great respect for Gillman—and not less for Madison.  But I have always thought that Gillman overstated the case for universal originalism in the nineteenth century.  (Paul Kahn’s Legitimacy and History still stands as one powerful contrary view.)  And Madison’s endorsement of a jurisprudence of original meanings in the passage McGinnis quotes stands in contrast to some ideas articulated by his contemporaries.  Madison is called the Father of the Constitution, as McGinnis reminds us—but Gouverneur Morris, who actually wrote more of the document than any other single person, famously derided the idea, saying with the authority of the man who held the pen that a history of the Constitution would not be a good aid in interpreting its provisions. (To be clear, McGinnis doesn't say that everyone was an originalist near the Founding, just as I am not saying that no one was.)

The point here is not that people didn’t reason from and about original meanings near the time of the Founding.  Of course they did—which means “of course many of them did, at least some of the time.”  And others of them were skeptical of that approach.  Similarly, one can find originalist reasoning cropping up in many nineteenth- and twentieth-century sources, which doesn’t demonstrate that originalism, much less any particular form of originalism, was the consensus or dominant method of that age.  Argument from original meanings, it seems to be, have always been one strain of constitutional arguments, jostling with several other strains—a state of affairs that is still true today and that I would bet is likely to continue for some time.

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