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04/02/2018

John McGinnis on the Culture of Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Rise of the Culture of Originalism.  From the introduction:

Constitutional theorists succeed practically only when they change the legal culture.  Jack Balkin has remarked that some legal arguments that were once off the wall can become “on the wall,” i.e. the subject of respectful debate. What constitutional theorists can do is make a whole set of arguments appear on the wall. They work at wholesale rather than retail.

Originalism was a marginal theory when I was in law school. Today it is taken seriously and is moving toward becoming the academic theory to beat. But what is most important practically is that originalism is changing everyday legal culture. That is the greatest significance of the Trump appellate justices. Their legal education occurred when originalism began to be taken seriously. And outside the law schools, it was nurtured by the Federalist Society and thus became part of their ordinary professional life.

We are already seeing the effects of the Trump appellate judges in the originalist methodology of their legal opinions. For instance, in the recent case of Turner v. United States, the issue was whether the right to counsel attached to an accused before indictment at the stage when he was offered a plea by the government — an offer which was to disappear after a set time. Under Supreme Court precedent the answer is clearly no, as the overwhelming majority of the en banc sixth circuit court of appeals held. But John Bush, a newly appointed Trump judge, concurred dubitante only under the compulsion of Supreme Court precedent which he was powerless to change. Judge Bush read the words of the Constitution as informed by their historical meaning to cover the time when a plea bargain was offered.