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05/29/2017

Calvin TerBeek Responds to Chris Green (and others) on the History of Originalism
Michael Ramsey

At The Faculty Lounge, a follow-up post by guest-blogger Calvin TerBeek: Response to Garnett, Sachs, and Green on Originalism's Intellectual History (responding to, among others, this Originalism Blog post by Chris Green).  From the conclusion:

To be clear, this is not to say that originalism as a serious academic inquiry is impossible. But originalists -- besides largely ignoring the political valence of the theory as practiced and the conservative/libertarian intellectual support structure -- seem reluctant to engage with historians' and political scientists' critiques of originalism. After years of being buffeted by academic historians, the linguistic turn was developed by Solum in order to avoid these critiques (though it is not clear that all originalists share Solum’s enthusiasm for this approach). Corpus linguistics, as used by originalists, appears to be another way to avoid historical critique at the same invoking the prestige of "big data" and putative rigorous empiricism -- all the while ignoring the fundamental problem with originalism: the probable existence of multiple "original public meanings."

The unproductive response to this evidence is to dismiss originalism as political hackery. It is not that. (Another irony in all this: historians and political scientists have taken originalism far more seriously as an idea than many liberal legal scholars). Originalism is better understood as providing the constitutional vocabulary for movement conservatism much the same way legal realism provided intellectual support for New Deal-era legal liberalism. But that also means originalism is inescapably part of the political terrain. However, originalists are now setting forth the intellectual architecture to claim that originalism is something like a replicable social science complete with a methodology. Thus -- and this has long been its implicit claim -- originalism is objective and any other theoretical construct is, by definition, constitutionally deviant. This is a bold, even audacious, claim. But it is one that needs to be debated and dissected rather than flippantly dismissed. Originalism has shown itself to be a powerful idea worthy of respect as a theory/movement. Originalists, at the same time, might do better to avoid the apolitical pretense that marks so much of the scholarship (and even the claims of more politicized actors like Levin). The final irony is this: originalism cannot achieve its desired hegemony unless and until its advocates engage with its critics rather than continually moving the proverbial goal posts. There still seems to be precious little evidence of that.