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05/10/2018

Jesse Merriam on Originalism and Libertarianism [Updated:McGInnis and Rappaport Respond]
Michael Ramsey

At Liberty Law Blog, Jesse Merriam (Loyola University Maryland, Political Science) : Originalism’s Legal Turn as a Libertarian Turn.  Here is the introduction:

Over the last few weeks, the Liberty Forum has featured several important and insightful essays on originalism, two of which I would like to explore here—partly as a way of seeking to understand Justice Gorsuch’s decision to concur with the four liberal Justices in an important immigration case, Sessions v. Dimaya (2018).

The first essay, by John McGinnis and Mike Rappaport, explored New Originalism’s so-called “legal turn.” As a result of this turn, law professors and courts have become the dominant sources of original public meaning, often prevailing over other sources (such as majority will and historical analysis) in what New Originalists dub the “construction zone.” In contrast with the highly circumscribed “interpretation zone,” the construction zone permits a wide range of disagreement over how to discern the Constitution’s original public meaning.

The second essay, a response by Ilan Wurman, argued that the transition from Old Originalism (focusing on “original intent”) to New Originalism (focusing on “original public meaning”) is largely co-extensive with the legal turn. Although Wurman expressed doubt in that essay as to whether legal meaning should supplant original public meaning when the two conflict with one another, Wurman claimed that this is not a pressing issue in practice. This is because original public meaning is often times sufficiently capacious to be consistent with whatever lawyers and judges acting in “good faith” hold it to be as a matter of law.

As a political scientist and legal theorist, rather than a law professor, I don’t consider it within my domain to engage the normative claims in these two essays. To be sure, I have my doubts about whether the legal turn is constitutionally and politically desirable. But such evaluations are not within my expertise.

I do wish, however, to engage their descriptive claims. As someone who has researched and written extensively on the legal conservative movement, I can affirm that McGinnis and Rappaport are indeed correct in observing the “legalization” of originalist discourse, and Wurman is also on solid ground in claiming that the New Originalism transition from “original intent” to “original public meaning” coincided with this legal turn.

But what these law professors miss—and what leads me to write this essay—is that originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell, a story about how legal scholars and institutions have consolidated control over originalism discourse and used this control to lead originalism away from a conservative and toward a libertarian agenda.

(Thanks to Mark Pulliam for the pointer).

I'm interested to hear what Professors McGinnis and Rappaport think of this commentary on their essay.  I agree  with the basic proposition that originalism has taken on a more libertarian tone over the last two decades, but I think the commentary is problematic in a number of respects.

UPDATE:  Professors McGinnis and Rappaport now have a response posted at Liberty Law Blog: The Legal Turn is not a Libertarian Turn.  It begins:

We are grateful that Jesse Merriam acknowledges the importance of the legal turn and our part in creating it. But we believe that he is mistaken in two important matters. First, the legal turn is not necessarily a matter of construction as opposed to interpretation. Second, the legal turn does not necessarily have a libertarian valence and indeed is likely to curb ideological bias.

And further:

But at least some versions of the legal turn are not about construction at all, but about interpretation. (Parenthetically, most originalists distinguish between public meaning, which is a matter of interpretation, and construction, concepts which Professor Merriam appears to conflate). Indeed, our own theory of original methods originalism, which we argue began the legal turn, asserts that the Constitution is written in the language of the law. Thus, that language, both legal terms and legal interpretive rules, constitute the Constitution’s meaning, accessible through interpretation. The legal turn, as represented by original methods originalism, does not fill the construction zone, but narrows, and perhaps even eliminates it.

I agree, and I would add this point as well:  Professor Merriam wrongly identifies original public meaning with New Originalism.  It's true that most New Originalists (I'm thinking here of Larry Solum, Randy Barnett, Keith Whittington and their intellectual allies) adopt an original public meaning approach.  But original public meaning is not a defining characteristic of their New Originalism.  Rather, it dates at least to Justice Scalia's famous speech in 1986.  (Reproduced at pp., 180-187 of the great collection of Scalia speeches Scalia Speaks, edited by Christopher Scalia and Ed Whelan.)  It's "new" in the sense that it is different from the "old" pre-1986 approaches identified (as Professor Merriam rightly says) with scholars such as Raoul Berger.  But that evolution is entirely different from the much more recent development of the approach called New Originalism, whose principal characteristics  I would describe as a focus on the interpretation/construction distinction (and generally a broad view of construction) plus a deemphasis of the original expected results and post-ratification practices as method of determining meaning.  Unlike original public meaning, these ideas were not part of Justice Scalia's approach and are not part of (or at least are not a principal focus of) many modern scholars who adopt original public meaning.