Saturday, August 01, 2020

AMA: Evan Bernick asks about liberal originalism


Now that I have gotten past a bunch of deadlines, I can return to the AMA from last month. Next up are some questions from Evan Bernick:

EB: You’re a liberal. Most originalists are not. Most public officials who claim to be originalists are not. Some nonoriginalists claim that originalism-in-practice is indistinguishable from conservative living constitutionalism. What say you to the charge that you’re reinforcing conservative hegemony by making sophisticated arguments for originalism that don't reflect how judges, etc. are actually wielding power?

JB: We shouldn't take the present situation as fixed. The fact that most originalists today are conservative doesn't mean that this will be the case twenty five years from now. Adrian Vermeule is already arguing for a conservative living constitutionalism based on Dworkin's theories, and Senator Josh Hawley has argued that textualism and originalism may not be the best path forward for the conservative movement.

If politicians like Hawley manage to reshape the conservative movement post-Trump, some (but certainly not all) conservative legal intellectuals will rethink their premises and methods. Some conservatives will effectively abandon originalism, while others will alter it substantially. The changes in thinking among legal intellectuals will be generational, and not everyone will change their minds. But the only thing we can be sure of is that the current originalism/living constitutionalism debate will look very different in twenty-five to thirty years.

Conversely, liberals used to make originalist arguments in middle of the twentieth century, and then they stopped, for complicated reasons. The fact that most liberals today don't like originalism doesn't mean that in the future they won't be attracted to liberal originalist theories like mine.

For many years now, people like me, my colleague Akhil Amar, and the folks at the Constitutional Accountability Center have been showing liberals and progressives why originalism is important to a progressive vision of the Constitution. In the world of ideas, winning people over takes time and persistence. It requires devotion to what you believe in and a determination to make the best arguments you can. Success is not guaranteed, but if you don't make the effort, you will have no influence.

I don't think that liberal originalist work reinforces conservative hegemony. What keeps conservative hegemony in place are much larger political, economic and social forces. If conservative hegemony fades away-- indeed, it is now in the process of fading away-- it will also be because of larger political, economic, and social forces.

I have been arguing for some time-- including in my latest book on The Cycles of Constitutional Time-- that the Reagan era is coming to a close, and that we are going to see a resurgence of liberal and progressive politics-- including constitutional politics. I argue that we are slowly leaving our current Second Gilded Age and moving into the highly contested and contingent politics of a Second Progressive Era.

In the coming regime, there will be a flowering of new ideas about the Constitution, just as there were in the First Progressive Era. All the work I have been doing for the last fifteen years will be available to people in this new era. I hope they find it useful.

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