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03/27/2019

Mark Pulliam Responds to Originalist Critics
Michael Ramsey

Originalist commentator Mark Pulliam has been drawing some originalist criticisms.  Here are his responses: 

At Misrule of Law, Making Constitutional Law Great Again (responding to Edward Ehler, Don’t Read the Constitution the Way Robert Bork Did).  From the introduction:

Claremont-trained political philosophers represent some of the strongest voices in conservative intellectual circles, but many of them share a flawed view of the Constitution, expressed vigorously—and sometimes splenetically—by the late Harry V. Jaffa.  Edward Erler’s recent essay, “Don’t Read the Constitution the Way Robert Bork Did,” channels both Jaffa’s truculent spirit and the doctrinaire position of West Coast Straussians, complete with familiar—albeit irrelevant–references to Abraham Lincoln and the Declaration of Independence. Unfortunately, Erler’s essay illustrates why the Left’s conception of constitutional law is ascendant while conservatives continue to dither: Unlike progressives, discordant conservatives have been largely ineffective in articulating—let alone advancing—a coherent vision of constitutional law. 

As I explained at greater length elsewhere (here and here), conservatives are all over the map when it comes to constitutional interpretation, and spend as much time in internecine feuds as they do in battle with liberal activists. Jaffa notoriously picked fights with respected conservative legal figures such as Robert Bork and Antonin Scalia, and espoused fanciful theories that have never been embraced by mainstream originalists (and almost certainly will never be adopted by a majority of Supreme Court justices).

And at Law and Liberty: The Many Flavors of “Originalism” (responding to Mike Rappaport, Mark Pulliam and the Old Originalism).  From the introduction:

Commenting on a piece I wrote for American Greatness, my colleague Mike Rappaport agrees with me in certain respects but chides me for being a proponent of “the old originalism,” which he regards as “false,” “problematic,” and “not real originalism.” Rappaport considers himself a “new originalist,” which means that he would follow the original meaning of the Constitution wherever it takes him, even if doing so would create more opportunities for “willful” (or non-originalist) judges to make up rights (as they often do). I accept Rappaport’s criticism in the spirit in which was given, and concede that my piece cited the “privileges or immunities” clause of the 14th Amendment, moribund since the Slaughter-House Cases (1873), as a provision that the Supreme Court should not resuscitate, as many legal scholars now advocate, in part because of the jurisprudential mischief it would likely inspire.

Does that make me a “faux” originalist? I confess to favor leaving a 150-year old precedent in place, despite considerable sentiment that it was wrongly decided—although critics differ greatly in their reasoning—but contend that my position is consistent with “real” originalism. My explanation follows a brief digression on the current state of originalism.

And in conclusion:

Accordingly, my position that the Slaughter-House Cases should be left alone is based on a combination of reasons: I agree with Bork, et al. that the majority was correct, or at least that the meaning of “privileges or immunities” is unclear enough to warrant a restrained interpretation; I strongly disagree with the notion of unenumerated rights (not because it will lead to mischief, but because it is mischief); and, at this point, the precedent is so old and well-established (even if not universally accepted) that, pursuant to stare decisis, it would undermine public confidence in the Court to overrule it. If that disqualifies me as a “new originalist,” so be it.

The original goal of originalism, it must be remembered, was to restore constitutional law to the task of interpreting the Constitution. As Bork famously remarked in 1982, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” Hewing to the constitutional text necessarily grounds—or “constrains”—judges, which is the whole point of having a written constitution. It is a fallacy to assume that “constraint” is incompatible with originalism.