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07/20/2019

Marc DeGirolami on Originalism and Conservatism
Michael Ramsey

At Law & Liberty, Marc O. DeGirolami (St. Johns): Notes on a New Fusionism (responding to Jesse Merriam, Is Legal Conservatism as Accomplished as It Thinks It Is?).  From the introduction:

In his Liberty Forum essay, Professor Jesse Merriam identifies an important asymmetry between political and legal conservatism in America. Postwar political conservatism adopted a true fusionist program that blended traditionalist and libertarian streams. That fusion was unstable, contested, and strategic; and the traditionalist spirit in the cocktail was often watered down. Still, its effect on national politics was once potent and perhaps, as Merriam believes, traditionalism was fortified in Election 2016 and will influence the direction of conservative politics. I’m skeptical about that, but he’s the political scientist.

But in the law, there never was a traditionalist-libertarian fusion. True, Justice Antonin Scalia, one of the leading figures of American legal conservatism, had some traditionalist views. Yet to the extent that Scalia’s legacy has been embraced and advanced by legal conservatives, it has been his methodological commitments, not his views. Legal conservatism, Merriam says, is populated and driven by the libertarian Right. It focuses on constitutional theory and the development of originalism to the near exclusion of anything else. And while originalism in its hands has been pitched as politically neutral, its preferences are clear.

I don’t see the originalist landscape quite the same way, but if Merriam’s description of this asymmetry rings true, it’s worth asking what explains it. ...

And from the section headed "What to Do?":

What then is that exotic, hothouse flower—the tradition-minded legal scholar—to do? ...

[One] option would be to attempt a new fusion on the ground now occupied by legal conservatism: constitutional interpretation. But I am getting ahead of myself. Before considering what such a fusion might look like, let alone whether it would be feasible or desirable, we need to know what traditionalism in constitutional interpretation might be.

Let me offer a thumbnail sketch of what I’ve described at length elsewhere, in a new paper, “The Traditions of American Constitutional Law.” Traditionalist interpretation takes political and cultural practices of long and concentrated duration as constituting the presumptive meaning of constitutional text. Its focus on the concrete practices of the American people—political and cultural—proceeds from the view that actions, customs, and patterns of behavior can sometimes speak louder than words and abstract principles.

Traditionalism takes the endurance of a practice before, during, and after ratification of a given constitutional provision to constitute its meaning. For example, for the traditionalist, the fact that the political practice of legislative prayer is ancient, continuous, and concentrated in American national and local government indicates that it is consistent with the Constitution’s Establishment Clause. But the force of practices as ingredients of meaning is presumptive only; it may be overcome by directly conflicting constitutional text or a very powerful moral principle that defeats the tradition. The longer paper investigates and documents the pervasiveness of traditionalist interpretation across the Supreme Court’s constitutional doctrine. Once one looks, one sees it everywhere as the Court’s modus operandi in many areas.

And on fusion:

... Traditionalism, on this view, would not be an alternative to originalism, let alone seek to displace it. Instead, the aim would be to integrate or fuse traditionalism with or from within some existing varieties of originalism. Several developments make this possibility worth considering.

First, originalism has been very successful as what Professor Jamal Greene has called an artifact of “political commerce,” a political consumable that the public regards as authoritative whenever it gets a hankering for constitutional law. The so-called “positive turn” in originalism and the description of originalism as “our law” are not unrelated theoretical developments that make use of some of the same sociological facts about originalism. But at least some of those social facts, such as what the Supreme Court says and does (or says that it is doing), are as much traditionalist as originalist. Traditionalism has, in some doctrinal pockets, a strong claim to being “our law” in this sense. Traditionalist fusion with originalism might therefore draw strength from and contribute to originalism’s political and sociological power as a positive legal matter.

Second, much of the historical evidence supporting originalism also supports traditionalism. Where there are differences, they tend to be ones of weight—how heavily to count historical practices before, during, and (especially) after textual ratification, how proximate the practice must be to ratification, and so on. There are also useful similarities and divergences between traditionalism and theories of the “liquidation” of meaning, the latter of which have been explored by originalist scholars. The differences between these interpretive methods are real, but they may reflect different emphases, degrees, and moods, as much as deep substantive differences. ...

(Plus several more reasons).

And in conclusion:

Doubtless, however, there would be many obstacles to any new legal fusionism along these lines. Some purist originalists might reject it out of hand for theoretical, political, or other reasons. Others may believe that far from fracturing, originalism is instead steadily pruning away outmoded varieties—working itself pure—and that to engage with traditionalism would represent a regression. And still others might say that a new fusion simply isn’t needed politically at this moment of originalism’s triumph.

These are cogent objections, but they are also typical of any fusionist undertaking that threatens or promises (depending on one’s perspective) to adulterate a theory—whether of law or politics—in its pristine form. Fusionism works on a more pragmatic ground, on a political premise of compromise: do ut des. I give a little something, so that you may give a little something in return, and together we both may benefit. In future work, I will examine the relationship of these theories to one another more systematically.[10] For the moment, it may be enough to observe that one of the virtues of Professor Merriam’s essay is to explain why legal conservative fusionism has never yet been tried. Perhaps its moment has arrived.

I would add that there was a strong traditionalist element to Justice Scalia's originalism, as discussed here.  Indeed, some scholars have argued that Scalia's traditionalism was distinct from (though complementary to) his originalism.  I think rather that he saw his traditionalism as a way to understand original meaning (so that they were not distinct methodologies).  But in either event, his views seem compatible with the idea of fusionism expressed in the essay, and perhaps more could be made of that.