Richard Primus on Originalism (with a Response from John McGinnis)
At Balkinization, Richard Primus (Michigan): Originalism as Old and New (commenting on the San Diego originalism works-in-progress, at which he was an invited commentator). From the beginning:
One of the things I learned [at the conference] -- I think -- was something about the growth of a relatively new perspective on originalism among many leading originalists. Over the course of my time as a law professor, I've periodically heard originalists say that originalism is a new interpretive theory, one that has never really been put into practice. One upshot of this view is the further idea that little or nothing in judicial practice to this point in time should be adduced as evidence of serious problems with originalism as a judicial method, because nothing that's been done so far is originalism. If judges trafficking in individual meanings have been sloppy with their history, or if looking to original meanings doesn't have a demonstrated capacity to reduce the scope of disagreement among judges (because judges interpreting original meanings seem to come down on opposite sides of a contested question pretty much in the same proportions as we'd guess they'd come down on opposite sides if they used some other method), it doesn't follow that originalists shouldn't claim that courts can in fact learn to do history properly of that originalism has the virtue of making the law more determinate than other decisionmaking methods do. What seems like counterevidence isn't, because real originalism has never yet been tried. And in the meantime, we should recognize that originalist theory is in its infancy and cut it some breaks accordingly. If we let it mature, and then road-test it, it might turn out to be great.
What I noticed about this view at this weekend's conference was that it seems to be held by more leading originalists than I think was the case ten or even five years ago. I heard this view articulated, or at least alluded to, by originalist scholars of various different stripes: young and old, diverse in terms of the particular form of originalism they favor, and so forth. To be sure, the view isn't universally held among today's leading originalists: I'm sure any number of the originalists at the conference would disavow it. Indeed, there are some extant theories of originalism that rely on the contrary claim that we've in fact been doing originalism all along. (Think of methodical-postivism originalists like Will Baude and Stephen Sachs.) But if the thirty or so originalists at this weekend's conference are a representative sample, the community of leading originalist theorists has shifted at least some appreciable distance toward the view that originalism has never yet been tried.
John McGinnis responds at Liberty Law Blog: Once and Future Originalism. He begins:
A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School [ed.: that's the University of San Diego School of Law, please] under the direction of Mike Rappaport. It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously. One of those critics, Richard Primus, has blogged about the conference in a friendly manner. Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists believe that originalism has never been tried before. I have never heard such a bald assertion from my colleagues.
And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.
A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.
Of course, originalist scholars have refined the theory over time in what William Baude has called the division of labor between the bench and the academy. But these efforts do not change the map, but fill in important details. The world of scholarship on originalism as on other subjects is inevitably fractal: even progress on one question leads naturally to other questions. There is nevertheless an essential continuity between the interpretive method Madison endorsed and that in which many originalist conference participants were earnestly engaged.
My view is in between. I agree with Professor McGinnis that originalism was the main interpretive approach in the early years (not by that name, of course). But I think things began to go astray earlier than the Progressive Era -- the late nineteenth century Supreme Court began appealing to extraconstitutional considerations and issued decisions seemingly based on little more than the Justices' own intuitions, with disturbing frequency. For example, consider the range of federal power cases resting not on the federal government's delegated powers but on supposed inherent rights of sovereignty (the Chinese Exclusion case is a prominent one). Relatedly, the Insular Cases created an exception to the geographical reach of the Constitution based apparently just on convenience. And, after a good start in Strauder v. West Virginia and Yick Wo v. Hopkins, the Court drifted away from the original meaning of the Fourteenth Amendment and ultimately into Plessy v. Ferguson. (Michael Paulsen and Luke Paulsen have an appropriately harsh assessment of this period in their book The Constitution: An Introduction).
I also think Professor Primus is partly right on two grounds. Originalism has not been done consistently at the Court for a long time, although some cases are based on originalism (increasingly so, after Justices Scalia and Thomas joined the Court). So, regardless of early practice, it's true that there is not a consistent experience with originalism in the modern era. Further, originalism has only recently gained the deep and careful attention of a range of scholars, so its theoretical underpinnings in the modern era are relatively new and still being developed. I'm not sure if this adds up to the full claim he is making, but I see where he gets the idea.
Professor McGinnis concludes (and I agree [including with the view he attributes to me]):
But originalists today are not advocating a radically new and lawless philosophy. Originalism was the law once and today has enough influence on decisions that it is, in the words of Michael Ramsey [at the conference], one of the contenders for a rule of recognition deeper than the proposition that law is whatever the Supreme Court says it. It can become an even more plausible as a contender, if originalists accept, as Michael Rappaport and I think they should, a role for precedent under rules that mediate between the generative force of originalism and the need to recognize than any legal system makes mistakes. Then nonoriginalist decisions that are woven in the consensus fabric of American life need not be disturbed.
It should not surprise us that in a nation as heterogeneous and divided as ours has become, that no underlying interpretive methodology is likely to gain a permanent victory. But the Gorsuch nomination as well as the growing culture of originalism suggests that the Constitution’s original interpretive method is regaining dominance.