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09/29/2018

Calvin TerBeek on Judge Kavanaugh's Originalism
Michael Ramsey

At the new blog A House Divided, Calvin TerBeek: The Kavanaugh Nomination & Originalism as "Counterrevolutionary".  From the introduction:

Before the nomination of Brett Kavanaugh to the Supreme Court turned to allegations of sexual assault (and alleged sexual misbehavior), the focus was on originalism as Kavanaugh’s judicial philosophy. Peek at the pages of National Review and one sees an interesting intramural debate: what kind of originalist will Kavanaugh be? Will he be an “old originalist” (such as Robert Bork, and, at least for the first half of his judicial career, Justice Scalia) concerned with judicial restraint, or a “new originalist” (such as Justices Neil Gorsuch and Clarence Thomas) wherein the watchword is “judicial engagement” and envisioning a more muscular role for the Court to check Congress and the administrative state?

The argument here is that this dichotomy between the two forms of originalism — old and new — is problematic and only coherent from a (deeply) internalist view of originalism, one that never leaves the pages of the law reviews, stylized “fun house mirror” histories of constitutional conservatism, and a desire to, acontextually and ahistorically, view originalism as largely untouched by politics. Instead — and in the words of one of key players of originalism’s development — originalism was always a “counterrevolutionary” approach to the Constitution designed not simply to roll back liberal court decisions but to challenge the New Deal settlement. In order to understand why, we need to first situate ourselves historically.

Without endorsing all of the claims and implications of the post, I agree that the supposed divide between "old" originalism as mostly judicial restraint and "new" originalism as judicial "engagement" is overdone, especially as applied to Scalia.  Scalia's originalism -- and mainstream originalism dating from his early time on the Court -- endorsed judicial "enagagement" (though not with that word) to protect rights and structures it found in the Constitution's original meaning.  It was "restrained" only in insisting that judges not go beyond the original meaning.  The divergence between Scalia's originalism and more recent forms of judicial engagement centers on what rights they would find in the Constitution's original meaning, but not materially on the role of judges.

RELATED:  The new blog A House Divided seems likely to be a source of material of originalist interest.  Another recent post is John Dearborn:  The Unitary Executive Theory versus the "Steady State" in the Trump Era (discussing this article from a while back by Saikrishna Prakash and John Yoo).