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07/13/2019

Michael Greve on Originalism and Conservatism
Michael Ramsey

At Law and Liberty, Michael Greve: Originalism: A Unitarian Church for the Legal Profession? (commenting on Jesse Merriam, Is Legal Conservatism as Accomplished as It Thinks It Is?).  An excerpt:

Concerns about accomplishments [of legal conservatism] and potential problems on the horizon begin with the question of what the program of “legal conservatism” actually is. What is distinctly conservative and distinctly constitutional about it? The conventional answer: originalism. Surely protecting (or rather, recovering) the original Constitution is a constitutional project, and it is conservative in a broad and good sense—no?

Jesse Merriam shows why that answer is problematic. With a caveat briefly noted below, the author follows the conventional approach of dating (modern) legal conservatism’s origins to the advent of the Reagan administration and to the contemporaneous founding of the Federalist Society and its rapid ascent under originalism’s banner. Less conventionally (but rightly, to my mind), he places the rise of the legal conservative movement in the context of the conservative politics of that time.

And from the conclusion:

... [Jesse Merriam’s] question [is] whether originalism, at this point, can still serve as a legitimating conservative theory of the Constitution.

To ask that question is not to suggest abandoning originalism, or to contend that it is somehow wrong. Operationally, any exercise in constitutional politics demands a legitimating, mobilizing, and unifying theory, and it is hard to see what other than originalism could have served or could now serve those functions. At a theoretical level, moreover, some form of originalism must be right, and the same is true of the complementary commitments to textualism and formalism. The question is whether originalism is (still) enough to serve as a legitimating theory. 

Jesse Merriam says “no,” and I think that, too, is right. If I understand him correctly, the author proposes to supplement, reformulate, or perhaps transcend originalism in light of an earlier conservatism’s traditionalist, natural law-ish modes of thought that were cast aside by a harshly positivist originalism. Like Peter Lawler and Richard Reinsch, he wants a constitution in full. I have considerable sympathy with that project; I’ll add two supportive notes of caution. 

For starters, academic originalism has, for a painfully obvious reason, jettisoned the traditionalism Jesse Merriam wants to reintroduce. ...

The other note of caution arises from the Ackermanian juxtaposition of the New Deal and the Reagan Revolution or, more precisely, the constitutional dimension of those moments. Some leading New Deal lights served on the Supreme Court (Felix Frankfurter, William O. Douglas); many more, on lower courts. A far greater number joined or returned to law-school faculties.  They got to own those institutions by inventing entire curricula (most important, Henry M. Hart and Herbert Wechsler’s capstone “Federal Courts” course, long since de rigueur for any law student who wants to go near a federal court), and by writing canonical textbooks and treatises not just on ConLaw but also on Administrative Law and numerous subfields. 

We are nowhere near that dominance. Merriam notes the obvious fact that conservative law profs are still an exotic species. As for the curriculum: I still use, as I must, Hart and Wechsler’s Federal Courts textbook (while explaining, as best I can, that it’s a paean to FDR’s Constitution). Then, too, the leading (perhaps only) originalist Administrative Law treatise (Gary Lawson’s) is basically unteachable because it declares the whole enterprise unconstitutional and so, what are we doing here? 

For all that, I join Jesse Merriam in counseling confident hope. The law-school dominance problem is too obvious to have escaped the Federalist Society’s attention and creative engagement; it just takes time. The question of whether originalism is quite enough has emerged as a live subject of debate, prominently including this splendid web site. And even the project of rethinking the orthodoxies of Federal Courts and Administrative Law has begun in earnest, by an increasing number of sophisticated scholars. ...