« William Haun: The Virtues of Judicial Self-Restraint
Michael Ramsey
| Main | Two Videos (Sessions and Roberts)
Andrew Hyman »


John McGinnis and Eric Segall on Law Students and Originalism [Update: and Tushnet]
Michael Ramsey

At Liberty Law Blog, John McGinnis: Why Law Students Need to Learn More about Originalism.  It begins:

It would be educational malpractice not to teach antitrust law without explaining the consumer welfare model that generates most modern decisions in American competition law. Even if as a scholar you believed that the model was misguided, this would still be true. Law is a professional discipline and students should be prepared for the world as it is rather than what their professors fantasize it could be.

Similarly, it would be malpractice not to describe originalism as an important theory of constitutional interpretation. To be sure, it is not as dominant in constitutional interpretation as the consumer welfare model is in antitrust. But no one could doubt that originalism is growing in importance. First, Court opinions sometimes treat originalist arguments as decisive. Indeed, as even some commentators on the left recognize, it is sometimes essential for progressives to appeal to the purest originalists on the court, like Gorsuch, because they may break with other Republican appointees precisely because of their greater commitment to originalism. As Randy Barnett noted, from his testimony at the confirmation hearings Kavanaugh may well turn out to be a pretty thoroughgoing originalist.

And on issues of first impression, both Chief Justice Roberts and Justice Alito are also tenacious originalists, as the recent concurrence in the recess appointments case showed. Even Justice Elena Kagan claimed to be an originalist in her confirmation hearing, which I took to be a sincere claim that the original meaning figures into her interpretive method, even if it is not the exclusive method even on questions of first impression.

Beyond helping students to be advocates in particular cases, understanding originalism helps explain what is going on at the Court. Informed by originalism, students can comprehend why justices widely perceived as conservatives (like Antonin Scalia) reach results that political scientists code as liberal in important cases, like those related to criminal procedure. Perhaps most importantly, they would understand the underlying methodological battle going at the court — that is, whether or not originalism will be treated as the predominant rule of recognition for what is our fundamental law.

At Dorf on Law, Eric Segall responds: Originalism in the Classroom? From the core of the argument:

First, to teach that Justices Scalia or Thomas, or the Court as an institution, has ever embraced originalism seriously would in fact be malpractice. As I've documented many times, and explain in Chapter 7 of my book, Scalia and Thomas have voted in a non-originalist manner throughout constitutional law including in the areas of affirmative action, campaign finance reform, takings, standing, federalism, first amendment, and virtually every other area of litigated constitutional law. As to Scalia, if you don't believe me, trust Randy Barnett on this point.  And if you believe Barnett, well Thomas and Scalia voted the same way in most (not all) constitutional law cases. To both of them, the Constitution is/was alive and kicking. I think most law professors already know this and teach accordingly.

Professor Michael Rappaport has suggested to me that many of my public statements critical of originalists deal with judicial originalism, not what he calls "academic originalism." I'm not sure that's fair, but let's assume a constitutional law professor teaching the basic con law course wants to teach originalism as part of her course. The question would be: whose originalism?

Larry Solum is a well known originalist who testified in the Gorsuch hearings and has written thousands of pages on the subject. He  has not yet, however, applied his theory to actual cases (really). So that seems like somewhat of a dead end for a survey course. I would assume Robert Bork's writings would be part of any originalist materials, except few originalists today agree with his method that included a heavy does of judicial restraint (same with Raoul Berger and Lino Graglia). Those Original Originalists simply don't seem to matter much anymore (to my chagrin).

Ilya Somin and Steven Calabresi urge a form of originalism that they claim justifies the Court's decisions overturning same-sex marriage bans, but many other originalists such as Michael Paulsen think that conclusion is, well, not only not originalist, but comparable to Dred Scott. Randy Barnett and Ilya Shapiro would like to overturn much of the administrative state through their brand of originalism via "judicial engagement", though Michael McConnell would absolutely deny judges that role under his version of originalism. Meanwhile, Will Baude and Steve Sachs think originalism is already our law (including cases like Brown and Obergefell), Most originalists today do not agree with that view.

The reality is that there is no one, two, or even three forms of "originalism" today, which is why my book spends a lot of time talking about the Original Originalists, the New Originalists, and the New New Originalists, and many in between.

UPDATE:  Mark Tushnet has these comments at Balkinization:  Originalism as Performed by the Supreme Court.  From the introduction:

Eric Segall has an interesting post on "Originalism in the Classroom?" I thought it might be interesting to try to figure out how one might teach originalism in a standard doctrinal course on the First Amendment. My text is Justice Alito’s discussion of the respondent union’s “originalist defense” in the recent Janus decision.

What follows is pretty harsh, but I agree; Janus was not, in my opinion, originalism's finest moment.  But the selection does not appear very fair to originalism, because I don't regard Janus as typical of originalist Supreme Court opinions, and I doubt Professor Tushnet chose it at random.  Perhaps he could balance it with an opinion like Justice Scalia's concurrence in Noel Canning, which (agree with it or not) I think is much more typical of originalist judicial reasoning.

Though I generally agree with the post, I think Professor Tushnet is wrong on one point.  He criticizes the Janus majority for appealing to precedent:  "Strictly speaking, originalism as such shouldn’t care about the consequences of following the historical materials where they lead. But, perhaps there is some “consequences matter” constraint on originalism. The usual example is paper money. One might expect, then, a discussion of why these consequences of originalism are more significant than other consequences, for example, in Heller."  But most versions of originalism allow some role for nonoriginalist precedent.  The routine criticism of originalist judges for incorporating precedent (mostly from the left) persistently and irresponsibly ignores this aspect of judicial originalism.  (But, I would agree that judicial originalism needs a better theory of precedent).