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07/24/2019

Further Responses to Jesse Merriam on Originalism and Legal Conservatism
Michael Ramsey

At Law and Liberty, two further responses to Jesse Merriam's essay Is Legal Conservatism as Accomplished as It Thinks It Is?:

Michael O'Shea (Oklahoma City): Normative Foundations of Originalism.  Here is the introduction:

Law & Liberty has become a major source of analysis of the future of legal conservatism and its signature doctrines. Back in April, Michael Greve’s “Originalism as Ideology”[1] diagnosed contemporary originalism as an “ideology” in the specific Hegelian sense: a timely idea that gets treated as timeless, with the result that its contingency and motivations are overlooked or denied. Greve argued that originalist practice “would benefit from candor and reflection,” and especially from more effort to “connect semantic theories to a substantive theory of the Constitution and of constitutional politics.”

Now comes Jesse Merriam’s thought-provoking Liberty Forum essay for July, which  draws the very kinds of substantive connections Greve called for. Merriam places the recent trajectory of originalist theory in the larger context of a critique of the fecklessness of the American conservative movement. He concludes that the apparent triumphs of the Federalist Society and originalist theory have not, in general, produced victories for conservatism—particularly not for the traditionalist branch of conservatism that focuses on “faith, family, and community.” Rather, originalism and its associated institutions like the Federalist Society have increasingly fostered a flexible, abstraction-heavy interpretive approach of “original public semantic meaning” that (especially in the academy) has been used to assimilate and validate past progressive cultural victories, while empowering present and future courts to reach ideologically libertarian results congenial to many elite lawyers and law professors.

I share the view held by Greve and Merriam (also by alert progressives like Eric Segall) that originalist theory has been evolving in ways that are more prone to obscure the exercise of judicial discretion than to constrain it. And I agree with Merriam that this development has not been particularly positive, either for legal conservatism or for the broader conservative project in America. The prior contributions to this Forum have engaged at a relatively broad level the issues raised by the possible tension between originalism and conservatism. Here, I’d like to supply some detail. My hope is to flesh out the discussion by examining a particular way that a subset of originalist theory (one with close ties to the institutions of legal conservatism) is becoming, not merely detached from conservative goals, but inimical to them.

And Jeffrey Pojonowski (Notre Dame): Conservatives and Originalism: Their Relationship, Reconsidered.  Here is the introduction:

Jesse Merriam argues that the unifying thread in the modern legal conservative movement is a commitment to originalism, especially in constitutional interpretation. If, as Merriam also argues, the jurisprudential analogue to fusionism is under pressure, originalism’s conservative bona fides will be a central point of contention. 

Merriam cautions against equating the rise of originalism with a triumph of conservatism: Originalism’s indeterminacy leaves room for liberal outputs—and professors, including those labeled “conservative,” will make those cases. This claim fits with the broader story he tells, in which the legal conservative movement garners victories for economic and social libertarianism but leaves social conservatives’ dreams deferred and regards economic populism as heresy. His Liberty Forum essay argues, provocatively, that the conservative legal movement is in result, if not in aim, a classically liberal project.

This response asks whether, and how, originalist interpretation can be conservative. This might appear to be the wrong question. Originalism is an interpretive method, not a worldview or governing philosophy. Many originalists emphasize that the method lacks any political valence. It is, in fact, this disconnect between originalist interpretation and conservative politics that makes Merriam’s unease about originalism and the legal conservative movement possible.

Yet originalism had its revival in that movement, and the method remains its fighting interpretive faith. To be sure, there are originalists who are not conservative or who regard the political outputs of originalism as irrelevant to the project. There are also a few “black swan” academic conservatives working in legal interpretation who have little time for originalism. But it is worth pondering why a method that is putatively separable from a political theory has a center of gravity resting firmly in the conservative legal movement. Hardened realists will say this naïve question answers itself, but I am more willing to take defenders of originalism at their word and consider whether there is in fact a connection between originalism and conservatism that runs deeper than crude results-orientation. 

I will argue that there is a strong conservative case for originalism as an abstract, formal matter. Nevertheless, the conservative case for originalism as applied to our particular constitutional order at this particular time is less certain and more complex. This essay is not a conservative case against originalism. Rather I will be thinking out loud about unresolved questions that have been nagging at me. I believe that for those who, like me, are sympathetic to originalism and the conservative disposition, these are worries worth confronting.