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06/30/2017

Calvin TerBeek on Originalism and Constitutional Translation
Michael Ramsey

Calvin TerBeek (guest blogging) at The Faculty Lounge: Originalism and Constitutional Translation: Part I. From the Introduction:

“One of the reasons I’m supporting Donald Trump this year is, number one, he’s going to put originalists on the Supreme Court, people that believe in fidelity to the Constitution, separation of powers, co-equal branches of government.” So said Sean Hannity, the popular conservative media personality, in a political advertisement for the Republican presidential candidate in September 2016. To the surprise of most pollsters and many political scientists, Trump prevailed, and as promised during the campaign, nominated an avowed originalist (Judge Neil Gorsuch) to the Supreme Court.

The nomination of an originalist from a list of judges compiled by the Federalist Society and the Heritage Foundation is not surprising. The more interesting question is this: how did it come to be that originalism is so readily identifiable to conservative voters such that Hannity can reference it in a campaign commercial without further explanation?

And from Part II:

Part I, setting forth the concept of constitutional translators is here. In short, that post tentatively explored the concept of "constitutional translators," mezzo-level elites who take sophisticated constitutional law and legal theoretical ideas and arguments and repackage them for a lay audience in a way such that they are more easily digestible. This follow-up post sets forth a nascent theoretical framework for thinking about the role these actors play in our constitutional politics and looks at how Charles Murray and Mark Levin translate constitutional conservatism.

...

[A]rguments about constitutional theory and interpretation, such as originalism, differ quantitatively (they are not talked about as much by elites as other political issues) and qualitatively (it takes more effort to translate these arguments than (say) concerns about immigration). A crucial force, then, in educating the public on these complex issues is partisan media. The conservative media ecosystem has played a significant role in this development as consumption of conservative media is inherent to that group identity. Constitutional arguments, therefore, are ripe for “translation.” From the 1950s to the 1970s, these arguments largely flowed from conservative media activists acting as as constitutional translators for the engaged conservative public. Later, as the conservative media ecosystem grew, the translation became more complex: from sophisticated academic theory and conservative legal elites to conservative governing elites to constitutional translators to conservative voters.

An instructive example of this downward flowing process from academics and elites to constitutional translators to the engaged public (who are most likely to read these books and engage with them) can be found in Charles Murray’s 2015 By the People: Rebuilding Liberty Without Permission. ...

Murray’s book is further instructive as he relies on the scholarship of academic originalists such as Randy Barnett, Michael Greve, and Gary Lawson (271, 272, 278, 279, 285) and libertarian law professor Richard Epstein, (285, 286) to construct his argument. Here, one can see the theory and developmental themes in action: originalist academics—named explicitly in the acknowledgements and footnotes—are relied upon by a constitutional translator who opens his book with the incantation “that we are at the end of the American project as the founders intended it” (xi) and deems the audience for his book “Madisonians [or] those people who are devoted to limited government. In today’s terminology, that includes classical liberals, libertarians, and many conservatives” as opposed to “Wilsonian progressivism” (xiv, xv, emphasis in original). Finally, Murray contends the “latest received [scientific] wisdom about best practice is more often driven by ideology and expertise” and that technocratic bureaucrats—here Murray invokes public choice theory—are inevitably biased (180-183).  

Murray is a talented constitutional translator, but based on certain metrics, Mark Levin maybe the most important of the current conservative constitutional translators. Levin, who served in the Regan DOJ, did not follow a path into academia or the bench, as many of his colleagues did. Instead, Levin built something of a media empire as a particularly provocative conservative commentator. One instantiation of this empire is his long list of New York Times bestsellers. Men in Black, with an Introduction by Rush Limbaugh and an Afterword by Attorney General Meese, trained Levin’s sites on the Supreme Court. ...  [discussion of Levin's book follows]

An interesting assessment, as usual from TerBeek.  But I would say, in the case of originalism, that a crucial "translator" was Justice Scalia.  The Court's decisions are reported widely enough that politically engaged people follow them to some material extent, and Scalia's role as an originalist and also a conservative luminary meant that politically engaged nonlawyers were likely to pick up the idea of originalism from him (at least, more likely than from Charles Murray).  Scalia became associated, in the mind of conservative nonlwayers, with resistance to what they saw as the Court's constitutional errors (and, in the case of gun rights, for example, with what they saw as the Court's constitutional successes).  This association was further both by Scalia's sharp and accessible opinion writing style and also by Scalia's off-the-Court commentary, which was widely reported by ordinary media.  So I would add that Scalia served as his own "translator" (quite consciously).