Thursday, June 06, 2019

Originalism in Political Science and Law

Mark Tushnet

For the symposium on Ken Kersch, Conservatives and the Constitution (Cambridge University Press, 2019).

In the 1980s the Reagan-era National Endowment for the Humanities, headed by Lynne Cheney, John Agresto, and William Bennett supported a number of conferences centered on the Constitution's bicentennial. One was held at the University of Dallas, then (and I think now) a conservative Catholic  institution whose political science department (the conference sponsor) was an outpost of (I think) West Coast Straussianism. I was invited to participate as the token "liberal" to ensure the program's balance. It was an interesting experience precisely because the concerns of these political scientists in the Constitution's original meaning were quite different from those then animating conservatives in the legal academy. Ken Kersch's wonderful book illuminates the political scientists' versions of originalism, but sheds only indirect light on the lawyers'.

The reason, I think, is that the the political scientists' concerns were quite different from the law professors'. There's little doubt in my mind that something deep did unify both sets of concerns: an unease about modernism manifested in the first instance by the view that Brown v. Board of Education unsettled valuable patterns of race-based social relations in the American South (on this Calvin TerBeek's ongoing research on the National Review is quite illuminating), and later by a related concern that Roe v. Wade did the same for religion- and gender-based social relations. But the proximate concerns differed. For the political scientists, the concern was that modernism repudiated the idea of a public life that promoted and reproduced civic virtue; for the academic lawyers, it was that the Supreme Court's activism had led to socially undesirable (and -- "therefore" -- legally insupportable) outcomes. (This isn't to say that "originalism was originally outcome-drive," but rather that the Court's decisions created an itch that needed to be scratched, and for legal academic conservatives originalism turned out to be an effect itch-scratcher.)

The difference between political scientists and legal academics means that Kersch's account, while fascinating, has little direct bearing on contemporary legal originalism. There is, though, some indirect or institutional connection. I've already mentioned John Agresto, a Straussian-influenced political scientist. And the Reagan administration had a bunch of them rattling around. Ken Masugi was an intellectual mentor for Clarence Thomas, which probably accounts for the prominent place the Declaration of independence has in Thomas's version of originalism (whereas the Declaration has almost no role in legal originalism as it's developed to this point). Gary McDowell was a speech-writer for Ed Meese, and I've long believed that he was primarily responsible for Meese's forays into originalism. Walter Berns, an East Coast Straussian, was at the center of the American Enterprise Institute's studies of the Constitution. And, again at the AEI, Robert Godwin produced a series of East-Coast Straussian collections on aspects of the Constitution.

These institutional resources were in the background when the first young legal originalists came on the scene, and I have little doubt that the political scientists saw the new legal originalists as their political (though not intellectual) successors. The political scientists saw (their versions of) originalism as an answer to the intellectual problem, How can we retrieve a pre-modernist intellectual framework in a philosophically credible way, and one that is consistent with the foundations of the U.S. Constitution? The younger legal academics saw their initial versions of originalism as an answer to the political-and-theoretical problem, How can we make sense of our disagreements with Warren Court decisions in a way that's defensible within standard accounts of constitutional theory? The answers to those questions then generated rather different intellectual agendas. Kersch tells us how the political-science agenda worked out. The legal-academic agenda took on a different set of questions (mostly about coherence in response to challenges), and developed along quite different lines.

Even in 1987-89 during the bicentennial celebrations it was clear that those about whom Kersch writes and the then-contemporary legal academics were talking about questions that were so different as to make productive interchange almost impossible (although I think there are some resonances of the Straussian approach in some manifestations of contemporary originalism's version of constitutional construction). So, his concluding speculations about the potential reunification of originalism seem to me rather unlikely to be confirmed in the future. Legal originalism is now so different from political-science originalism that the former, in which I am most professionally interested, now stands on its own feet. Whatever one has to say about legal originalism, whether supportive or critical, is unlikely to draw upon anything in the literature that Kersch so ably analyzes.

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