Eric Posner at ericposner.com: Trump and the Originalists. From the introduction:
Trump does not hold any discernable constitutional philosophy but Trumpism owes its meteoric rise in part to originalism, which was so forcefully championed by Antonin Scalia over his long career. I see Trumpism as having three parts: (1) a policy commitment to economic nationalism and law and order; (2) a nativist emotional appeal; and (3) a nihilistic attack on elites and elite institutions—nihilistic because there is no explanation as to what will replace them, only the hope that something better will. It’s #3 that I associate with originalism.
It’s not that originalism itself is nihilistic—quite the contrary. According to its supporters, the original understanding supports a limited national government of the sort that existed before the twentieth century. Such a government would be deprived of the power to interfere with people’s economic and political liberties but would remain strong enough to protect the country and support a national market.
The nihilism lies not in the vision itself, but in the implications, which were originally implicit, but have been spelled out more explicitly in the last two decades, with Scalia as champion. The argument is that because American law and legal institutions have deviated from this understanding, they are illegitimate. The entire administrative state—the EPA, OSHA, Obamacare, social security, and all the rest—is illegitimate.
And what this means is that presidents from FDR (if not earlier) to Obama have wielded authority that they did not have. That Congresses have betrayed the nation by acquiescing in the aggregation of presidential power. That the Supreme Court has failed to enforce the Constitution. Nearly all the officeholders at the top of our government over the last century have violated their oath to defend the Constitution.
I think this greatly overstates. Only extreme versions of originalism would find "the entire administrative state" to be unconstitutional, though surely some agencies would be greatly scaled back under most forms of originalism.
Professor Posner continues, connecting Scalia and Trumpism
It was quite a rhetorical trick, but Scalia managed to anticipate Trumpian populism by associating the constitutional vision of the aristocratic founders with democracy, and accusing the liberal justices—who emerged from and hobnobbed with the same exclusive circle of establishment types as he did—of being out-of-touch elites. It was this claim that helped pave the way for Trumpism. A key element of Trump’s appeal derives from the sense that American institutions have failed us. Scalia, and the Republican politicians who deified him, confirmed this view by placing the blame squarely on the shoulders of a hopelessly corrupted Supreme Court while invoking a nostalgic vision of purer times. And who would be better placed than Scalia to make this accusation? The old, moderate response of Republican presidents from Nixon to Bush—“we’ll appoint better justices”—no longer persuades. They promised and failed to deliver. The rot is complete, the structure must be set alight in a long overdue Gotterdammerung.
I find this connection to be quite a stretch. Trump does not seem concerned with the size of the federal government or the powers of the President (or, really, with the Supreme Court). Trumpism, I would say, is not about limiting government power; it's about getting control of government power. (Thus, originalist-oriented libertarians like Ilya Somin tend to be NeverTrumpers). While it's true that Trumpism arises from a perception of failed national institutions, (a) the Supreme Court is far from a central concern; and (b) the failures are mostly failures to exercise enough power: failure to protect jobs, failure to limit immigration, failure to act against foreign enemies, failure to suppress crime. None of this has much to do with originalism or the Court or the administrative state. Professor Posner's argument would work better if the connection were drawn to the Tea Party movement, which was expressly a reaction to the size of the federal government and was substantially inspired by originalism (see Elizabeth Price Foley's book The Tea Party: Three Principles). But of course that would not carry the shock value he's looking for.
Also some thoughts on the failure of originalism at the Court:
It turned out that there was no mainstream political support for originalism—in a substantive as opposed to merely rhetorical sense. Most ordinary people admire the founders but want a strong national government, and all the goods that it provides—from social security to environmental protection.
The major cause of the failure of originalism [at the Supreme Court] was thus practical and political. Reagan was able to appoint only one Supreme Court justice who was an originalist—Scalia himself. His other two appointments—Kennedy and O’Connor—were not originalists. Over the years, presidents—whether Democrats or Republicans—failed to appoint originalists (except Clarence Thomas). In retrospect, two major knells of originalism’s doom were the appointments of Alito and Roberts by George Bush—solid conservatives but not originalists. It also became clear that Bush did not care about originalism or even the Supreme Court; not even ideologically conservative presidents could be depended on to ensure an originalist Supreme Court. Meanwhile, Supreme Court decisions themselves—while more conservative than in decades—did nothing to dismantle the administrative state, in fact, to the contrary, affirmed it.
Whether Justice Alito and Chief Justice Roberts count as originalists depends on one's definition. I would call them "originalist-oriented," meaning that they are open to originalist arguments and originalist values, especially in areas without extensive precedent. Putting it that way takes most of the sting out of Professor Posner's account. It's hard to make the argument that the Court is less originalist-oriented now than it was 30 years ago. But it is also surely true that the Court is less originalist-oriented now than some people 30 years ago hoped it would be.
At Volokh Conspiracy, David Bernstein comments:
[O]riginalism faces a significant difficulty in becoming the governing ideology of the Supreme Court, regardless of the ideological sympathies of the justices. Modern “original public meaning” originalism faces the problem that it’s almost entirely novel to American jurisprudence, which means that we have more than 200 years of precedent based on what modern originalists deem to be illegitimate non-originalism. It’s not politically or practically feasible to start from scratch (imagine the panic in world markets if the court ruled the Federal Reserve unconstitutional), and if the court applies originalism only selectively, or only to new issues not addressed previously, it raises the serious question as to whether it’s coherent to have a body of constitutional which is only partially based on originalism.
Agreed as to the first part. Originalism only works on a practical level if combined to some extent with precedent. But, as to the second part, I don't see why it can't be.