Originalism: the theory and the politics

March 7

The questions of whether originalism is true and where originalism comes from are both interesting. But they are different questions. Either question might interest people, but it’s important not to confuse the two. For example, some of the enthusiastic devotees of the scientific theory of evolution were “Social Darwinists” or promoters of eugenics. But it would be pretty silly to think that that fact tells us much about the scientific validity of evolution.

Theories of law are a little more complicated, because there is less consensus about the method for establishing legal truth than there is about the method for establishing scientific truth. And that might be because law is really a human construct in a way that science is not (although I’m sure that claim will be controversial in some quarters too)! But the basic point remains.

Even if it is true, as Eric Posner writes, that “originalism is a political strategy that became attractive because the founding-era meaning of the text coincided (very roughly) with the political goals of conservatives,” at this point it is also a real theory, and it is part of American legal practice. There are some interesting tensions raised sometimes by the difference between academic originalism and practical originalism (which I call “impure originalism”) but they’re ultimately not fatal to originalism, they’re just inevitable tensions in constitutional theory.

That brings us to this assessment:

I do sympathize with conservatives of the 1970s and 1980s who saw the Warren Court as an ideological apparatus, and were contemptuous of the law professors at the time who sought to rationalize its liberal holdings with phony constitutional theories. The problem was that the alternative they came up with rests on a mythical self-image, or at least encourages people to treat mythology as fact, with all kinds of weird consequences for constitutional law. It’s as if the Germans repudiated their Basic Law and decided to derive constitutional norms from the myths of the Nibelungen. Or–to be fairer–from whatever archaeological research might reveal about the customs of Germanic tribes at the time of Tacitus.

First, this passage once again reveals that the world looks very different to an internalist and an externalist. Posner seems to look at constitutional law from outside the system, and it looks silly and made up, as lots of systems do from the outside. I look at it from inside, and while originalism is “working itself pure,” it seems like one of the most viable competitors in current constitutional theory.

But let me try, briefly, to play an externalist. Suppose that I am a 70s/80s political operative whose goal is to dismantle the Warren Court (actually the Burger Court, by this time). I could try to simply eliminate the court or its power, but there is too much demand for such an institution. I could put forward a vision of precedent, but that will let the activists “vote twice” because liberals will disregard conservative precedents but conservatives will adhere to liberal precedents. I could put forward a vision of barely-concealed conservative policymaking, but that comes pretty close to eliminating the court too, because if it really is engaged in nothing but politics, how can it justify its existence? So maybe originalism really is the most politically acceptable antidote to unconstrained judging — not because it is perfect, but because it is better than the other ones allowed in our legal culture.

Now I don’t know if any of that is right. But if we are going to try to draw lessons from the alleged political practice of originalism, I see two natural choices:

1, originalism is the best available alternative to unconstrained judging or
2, originalism has been on the rise because people really believe it.

Take your pick.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
Comments
Show Comments
Most Read National
Next Story
Eugene Volokh · March 7