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03/29/2016

Seth Barrett Tillman on Originalism, Nonoriginalism and Senate Confirmation
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: The Two Discourses: How Non-Originalists Popularize Originalism and What that Means.  The whole post is just brutally awesome, but here is a key part: 

The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public ... non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.

For example, several days ago, some 350 legal academics signed a letter calling for Senate hearings on the Merrick Garland nomination. My understanding is that this letter was circulated by the über-liberal Alliance for Justice. What did the letter say?

The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.

Letter from Professor William Andreen et al. to Majority Leader Mitch McConnell et al., Re: President Obama’s Nomination of Judge Merrick Garland (Mar. 7, 2016) (emphasis added). Read the list of signers—are any of them originalists, much less originalists of the original intent variety? Perhaps somewhere in that list of 350, there might be a couple. But aren’t the vast majority garden-variety non-originalists? Why did these people sign this letter? Could not they have crafted a letter for the Senate and for the public explaining their position: that Judge Merrick Garland deserves a Senate hearing, and also support their conclusion via a mode of constitutional interpretation that they actually believe? Do any of these people teach their students that constitutional meaning, obligation, and duty are determined by the intent! of the Framers!? (Most originalists stopped teaching this discourse a generation ago: they upgraded from original intent to original public meaning.)

Professor Tillman then specifically notes one non-originalist signer, Dean Chemerinsky of UCI law school, and asks: 

[Might it be that] Chemerinsky signed the letter because he agrees with the result argued for, and because he understands that non-originalist discourse is not favored by the American public he is hoping to convince. In other words, Chemerinsky and his colleagues are unwilling to make the effort to explain to the public that a better mode of constitutional discourse is possible; indeed, the 350 signers hope to convince the American public via a mode of discourse that they themselves reject, without even putting the public on notice that they reject that discourse. No one is stunned by this situation precisely because it is the norm.

RELATED:  Also at New Reform Club, Professor Tillman posts his letter to the Boston Globe responding to the op-ed by Dean Martha Minow (Harvard) and Dean Deanell Tacha (Pepperdine).  It concludes:

... [F]or over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees. 

Why Deans Minow and Tacha would assert otherwise is a mystery.