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Michael Greve: Originalism as Ideology
Michael Ramsey

At Law and Liberty, Michael Greve: Originalism as Ideology.  From the introduction: 

I propose to explore originalism as ideology. What I mean by “ideology” is not partisan commitment but the original, Hegelian meaning: an idea whose progenitors deny, or cannot bring themselves to reflect upon the contingent conditions of that idea’s origin or creation—a thought or theory that parades around as timeless truth, as opposed to recognizing that it is a child of its time. In my view, originalism has been way too ideological in that sense. It would benefit from reflection and candor.

Originalism originated circa 1982 as a bit of a good-natured joke. Conservatives needed some respectable way of telling Justice Brennan and Justice Marshall, you can’t just make things up. “Strict construction” had failed (too Nixonian); so had Alex Bickel’s “passive virtues” (too fusty, and futile after the 1960s and certainly after Roe). Originalism looked like it might work. It seemed to offer a big tent for conservatives of all stripes and, at the same time, a program beyond partisan ideology and culture wars. This isn’t just about abortion or the death penalty, originalism seemed to be saying: we have a neutral program—a method of interpretation. Obviously, that was never quite true; but it had a certain surface plausibility.

It soon turned out that the originalist program had to be reformulated—not once, but repeatedly. Some of the reasons were theoretical; others political. Initially originalism was supposed to be about adhering to the Founders subjective intentions. That position is hard to defend as a serious theory and, worse, seems to be saying that Brown v. Board was probably wrong. Michael McConnell solved that latter problem in a famous article; and originalism migrated to a theory of “original public meaning.” That position is still au courant. But it, too, has been modified—again, for a combination of political and theoretical reasons. As for politics: in academic precincts, there must be a right to same-sex marriage if you want to remain part of the conversation. And there is, Steven Calabresi and other noted originalists purport to have shown: right there in the Fourteenth Amendment.  Other originalists have been cagier, although I wonder how long that can last.

(Thanks to Andrew Hyman and Mark Pulliam for the pointer).

Also at Law and Liberty, Mike Rappaport has a response:  How Old is Originalism?

For me, a telling paragraph in Professor Greve's critique is this one:

A far more consequential example [of the problems with originalism]: the separation of powers, and the “unitary executive.” We were supposed to celebrate Chadha (the “legislative veto” case) and we weren’t supposed to question the “unitary executive” because President Reagan and his Justice Department fought it ["fought for it," I think is intended] and, more important, because it wasn’t just a theory or doctrine but came directly from the Constitution’s text: it vests the Executive Power, all of it, in a President. That uncompromising position makes it hard to entertain second thoughts about presidential government, as many serious people now do; or to put the “unitary” piece of the puzzle together with an executive state that’s obviously out of control. 

No, accepting the unitary executive as an aspect of the text's original meaning does not "make[] it hard to entertain second thoughts about presidential government."  You may entertain all the second thoughts you wish.  But (if you are an originalist) you can't implement those thoughts through the courts under the cover of a supposed reinterpretation of the Constitution (in fact, by persuading five Justices to share your second thoughts).

Professor Greve is, in short, a conservative living constitutionalist.  Like most living constitutionalists, he wants to dress his modern intuitions up with some connection to the Constitution and the founding era, but he doesn't want those connections to get in the way of any "second thoughts" he might have about the modern efficacy of what was actually written in the Constitution. 

And that's fine.  Living constitutionalism is a worthy opponent of originalism, and there's no reason why living constitutionalism should necessarily lean left.  Indeed, I think the broader discussion of constitutional interpretation would be a more balanced and useful one if there were more conservative living constitutionalists.  Among other things, people on the left might find that originalism has more virtues than they supposed.