At Volokh Conspiracy, Randy Barnett: Out of touch law professor criticizes Judge Gorsuch and “originalism”. It begins:
The Brookings Institution has published a shockingly ignorant critique of Supreme Court nomineee Neil Gorsuch’s commitment to originalism, entitled Is Neil Gorsuch an “Originalist”? Impossible. I use the term “ignorant” advisedly as the author Richard O. Lempert, the Eric Stein Distinguished University Professor of Law and Sociology, emeritus, University of Michigan, is apparently unaware of–and uninformed by–the past 25 years or more of originalist theory, methodology and practice. Originalists actually listened to the critique of originalism made in the 1980s and adjusted their position accordingly. (The term “originalist” was actually coined in 1980 by Paul Brest in a famous critique, The Misconceived Quest for Original Understanding.)
[I]f Professor Lempert’s critique of originalism is what we have in store when the Senate Judiciary Committee hearings commence on March 2oth, it is useful to see how far his criticisms are from his target. .;. [extensive criticism follows].
In addition to Professor Barnett's well-founded criticisms, another move in the essay annoys me: Professor Lempert's central claim is that the original intent cannot be found, but he typically proceeds by rhetorical questions or conclusory statements, without demonstrating that an original meaning is actually unknowable. For example, he writes:
For the most part, however, we cannot know what the Framers intended. Even if it is clear how the Framers intended the Constitution to be applied to a dispute they could anticipate, there is no way of knowing how they would have applied it to a dispute they could not even dream of. For example, the Constitution gives Congress, not the Executive, the sole power to declare war, but we managed to fight wars in Korea, Vietnam, Afghanistan and Iraq without any formal Congressional declaration. In extending the power to declare war only to Congress, did the Framers intend to provide a constitutional defense to men charged with a refusal to fight in Vietnam? No one can tell.
Actually, I've studied this question closely over the course of many years and I believe I can tell. The phrase "declare war" included both formal declarations and the uses of force without a declaration. Thus the President could not start wars. However, the framers accepted broad statutory authorizations by Congress for presidential war making, for example in the 1798 naval war with France and the 1801 action against Tripoli. Thus Iraq, Afghanistan and at least most of Vietnam were constitutional under the Constitution's original meaning and no such defense would be permitted. Korea, on the other hand, was not approved (formally) by Congress and thus was an unconstitutional use of force by the executive. Would that provide a defense to a soldier refusing to fight? I think it would. The exact issue never came up in the founding era, but it follows from the war being unconstitutional that a presidential directive to fight an unconstitutional war would be illegal and thus could not be the basis of prosecution. In a somewhat analogous situation, the Supreme Court in Little v. Barreme (1804) held that an illegal executive order could not be a defense for a navy commander who was sued for wrongful seizure of a ship.
Perhaps Professor Lempert has studied this issue at length, including reading the evidence that I and others have put forward, and concluded that we are wrong. A few originalists do take a different view (John Yoo being the most prominent). But nothing in Professor Lempert's essay suggests that he has thought about the issue for more than a few minutes, and he cites nothing to show that originalism cannot provide an answer -- he simply asserts it. In his post, Professor Barnett charges Professor Lempert with the fallacy of attacking a straw man; I think we can add assuming his conclusion.
Professor Barnett also asks a question I too have wondered about:
Why would [a person on the Left] possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause?
(Or, I would add, the declare war clause?)