Sunday, February 19, 2017

Originalism as Old and New

Richard Primus

I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was one of a small but non-trivial number of critics of originalism there, and the fact that we were included also speaks well for the conference, of course.  I learned things worth learning and would be delighted to go again.

One of the things I learned -- I think -- was something about the growth of a relatively new perspective on originalism among leading originalists.  Over the course of my time as a law professor, I've periodically heard originalists say that originalism is a new interpretive theory, one that has never really been put into practice.  One upshot of this view is the further idea that little or nothing in judicial practice to this point in time should be adduced as evidence of serious problems with originalism as a judicial method, because nothing that's been done so far is originalism.  If judges trafficking in individual meanings have been sloppy with their history, or if looking to original meanings doesn't have a demonstrated capacity to reduce the scope of disagreement among judges (because judges interpreting original meanings seem to come down on opposite sides of a contested question pretty much in the same proportions as we'd guess they'd come down on opposite sides if they used some other method), it doesn't follow that originalists shouldn't claim that courts can in fact learn to do history properly of that originalism has the virtue of making the law more determinate than other decisionmaking methods do.  What seems like counterevidence isn't, because real originalism has never yet been tried.  And in the meantime, we should recognize that originalist theory is in its infancy and cut it some breaks accordingly.  If we let it mature, and then road-test it, it might turn out to be great.

What I noticed about this view at this weekend's conference was that it seems to be held by more leading originalists than I think was the case ten or even five years ago.  I heard this view articulated, or at least alluded to, by originalist scholars of various different stripes: young and old, diverse in terms of the particular form of originalism they favor, and so forth.  To be sure, the view isn't universally held among today's leading originalists: I'm sure any number of the originalists at the conference would disavow it.  Indeed, there are some extant theories of originalism that rely on the contrary claim that we've in fact been doing originalism all along.  (Think of methodical-postivism originalists like Will Baude and Stephen Sachs.)  But if the thirty or so originalists at this weekend's conference are a representative sample, the community of leading originalist theorists has shifted at least some appreciable distance toward the view that originalism has never yet been tried.

I grew up hearing people say that communism had never been tried, either, and perhaps there's a cautionary tale in that comparison.  Sometimes an idea is worth giving up on even if its core supporters don't believe it's yet been fully put to the test.  But perhaps the comparison is misleading: just because people have made the never-been-tried argument as a way of not coming to grips with the problems in practice of one idea doesn't mean that every use of never-been-tried is similarly flawed.

Besides, I am in important ways in agreement with the originalists who say that their idea hasn't been tried.  Modern originalism is largely born of reaction to the Warren and Burger Courts; it began to be seriously theorized in the 1980s and has come a considerable distance since then.  And at no time, I think, has it been the dominant practice of the courts.  That doesn't mean, I think, that we can't look to what judges have actually done when construing original meanings to make some inferences about the limits of the method.  But it does mean that originalism, in its modern theorized form, is relatively new.

I think it striking that if this view of originalism as new and untried is now becoming common among the vanguard of originalist theorists, it represents a notable break between that theoretically minded group and most of the originalists on the bench.  On the bench, and also in other spheres, originalists usually present their theory as if it were not just the best theory but also the way we've always done it, or at least the way we did it before a strange and unfortunate run of (maybe well-intentioned) lawlessness in the middle of the twentieth century.  One smart originalist judge in a recent prominent case asserted the proposition this way: "All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it."  772 F.3d 388, 403.  That view claims for originalism not just whatever authority it has as a theory but also the authority of widespread and settled practice.  That latter claim of authority rests, of course, on an understanding diametrically opposed to the idea that originalism has never yet been tried.

There's nothing odd about theorists and practitioners having different accounts of the idea that they purport to share.  (Just as there's nothing odd about internal divisions among theorists, or among practitioners, about the same sort of thing.)  But as constitutional theory moves through the next decade, I think it will be worth keeping an eye on how the never-been-tried idea does or does not take hold.  Here's one reason why.  Among most lawyers and many legal theorists, one of the attractions of originalism is the idea that it would hold the law stable--that it maintains the integrity of existing law against the threat posed by judicial attempts at unwarranted change.  In reality, though, and for reasons that I have explained elsewhere and that other people (including the host of this blog) have explained before me, originalism is probably a better technology for creating legal change than for stopping it.  The never-been-tried idea comes within a whisker of acknolwedging openly that originalism is a bid to change the law as it has actually existed.  After all, if we settle legal questions with a method that has never yet been tried, we can only assume that we will reach results different from the ones we have been reaching for all of history up until now.  Otherwise, what would the point of changing the method be?  (Originalists can of course say that their proposed changes to the law amount to a restoration of a long-lost correct law.  But be that as it may, a proposal to do things in a way that has never been done before is a proposal to work significant change.)

I don't know how originalists beyond the theoretical vanguard will respond over time to the never-been-tried idea and its attendant implication that originalism promises to change the law rather than to stabilize it.  Nor do I know how people who have no firm views on originalism will react if these issues become visible to them.  But I am very much interested to find out.

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