A Response to Calvin TerBeek, Originalist Scholarship and Conservative PoliticsLee Strang

[Ed.:  For this guest post we welcome Lee J. Strang, the John W. Stoepler Professor of Law & Values at the University of Toledo College of Law.  For more on Professor Strang's book, see his conversation with Richard Reinsch at Law & Liberty.]

I was delighted when The New Rambler solicited a copy of Originalism’s Promise: A Natural Law Account of the American Constitution to review, because I appreciate the constructive criticism a book review can provide.  A good book review has at least two fundamental components—a description of the book being reviewed, and an evaluation of the book’s arguments—both of which would help me re-evaluate and potentially revise my arguments.  Unfortunately, Professor TerBeek’s review possesses neither component. 

Professor TerBeek does not describe or engage with the most important contribution of Originalism’s Promise: its law-as-coordination account of originalism.  Originalists have provided a variety of normative justifications for originalism over the past twenty-five years, and Originalism’s Promise is the first to offer a natural law justification.  It should go without saying that there are likely a variety of reasonable constructive criticisms a review could present of my law-as-coordination account—a reviewer could, for example, argue that law-as-coordination fails as an account of law, or a reviewer might argue that it fails as applied to fundamental legal documents like the Constitution, or a reviewer could take a variety of other tacks.  After reading Professor TerBeek’s review, one would not only not know about my law-as-coordination account; one also wouldn’t have the benefit of Professor TerBeek’s evaluation of it. 

Indeed, it’s not clear that Professor TerBeek understood my natural law account.  He stated that the “account of natural law appears to have been woven into the last fifth of the manuscript.”  This is an odd claim for at least two reasons.  First, the law-as-coordination account of originalism, Chapter 4, covered nearly 100 pages in a 300 page book.  Second, the natural law account is part-and-parcel of many facets of the conception of originalism presented in Originalism’s Promise.  For example, I drew on the natural law tradition to argue in Section 2.6 that originalism needed to incorporate judicial virtues to enable it to secure the common good. 

Professor TerBeek also fails to describe or engage with my in-depth description of how originalism should operate in practice.  Chapter 2 provided a complex, detailed, and intricate description of originalism.  It argued for the Constitutional Communication Model of original meaning originalism, the Deference Conception of constitutional construction, a robust originalist theory of precedent, and use of the judicial virtues.  One would not know of these four important scholarly moves from Professor TerBeek’s review, the reasons that support them, or Professor TerBeek’s evaluation of them. 

Instead of describing and engaging my key arguments, Professor TerBeek mischaracterizes Originalism’s Promise and (a pastiche of) its arguments as conservative-libertarian subterfuges.  His resulting review fails to accurately describe Originalism’s Promise and fails, on its own terms, to account for the phenomenon it purports to describe. 

Professor TerBeek claims that my “book is better understood as speaking to the academy’s network of conservative and libertarian constitutional thinkers.”  That is wrong for a variety of reasons.  First, as stated on page 1, my goal writing Originalism’s Promise was to persuade Americans generally, federal and state officers, and academics of all stripes, that originalism is the best way to interpret our Constitution.  Second, I presented the arguments in Originalism’s Promise in a variety of fora, including, for instance, the American Constitution Society’s Constitutional Law Scholars Forum, precisely because I wished to present my arguments to a variety of perspectives.  Third, Professor TerBeek’s corollary claim that “[o]ne goal of the book is to reassert the control Georgetown’s Center for the Constitution once had over the fractious intra-originalist debate in the legal academy” is absurd.  The Center never had such control; the Center does not have such control as a goal; and Originalism’s Promise is not part of such an effort—and Professor TerBeek offers no evidence to support this claim.  He cites page 42 of Originalism’s Promise, but on that page I summarized the subsection where I had described the robust pluralism within originalism and how Originalism’s Promise contributes to it!  Fourth, Professor TerBeek likewise provides no reason to believe that Originalism’s Promise “is aimed at beginning . . . a boarder originalist conversation with . . . Straussians or Straussian-adjacent[s].”  Whoever is in that group, it is not the large body of legal scholars who debate constitutional interpretation, federal and state officers, and Americans generally—Originalism’s Promise’s audience.    

Professor TerBeek repeatedly mischaracterizes Originalism’s Promise as part of and aimed at a group he labels “conservative and libertarian” or just “conservative.”  “Strang’s book is the product of—and is also primarily aimed at—the conservative knowledge structure.”  Professor TerBeek’s characterizations of originalism as synonymous with (and supportive of) “the conservative knowledge structure” that is “institutionalized by the conservative legal movement and the Republican Party” does not fit originalists’ robust diversity of intellectual and other commitments.  Originalists, like other academics and Americans generally, bring with them a variety of philosophical and substantive policy commitments.  I know first-hand from conversations, debates, and scholarship, that leading originalists disagree on many and many important issues including the best jurisprudential theory, major substantive legal issues, and many facets of originalism itself.  As I stated on page 41: “Originalists disagree on a lot.”  To tag this large and diverse group of scholars with the blunt political labels of “conservative” and “libertarian,” is inaccurate. 

Indeed, Professor TerBeek’s own “evidence” cuts against him.  He claims, for instance, that I was a visiting scholar at the “conservative” Georgetown Center for the Constitution.  The Center’s director, residential scholars, visiting scholars, and other affiliated personnel do not share a political or ideological viewpoint; indeed, they disagree on most important ethical, political, and jurisprudential issues—what they do share is a commitment to exploring originalism.   

Professor TerBeek makes a variety of misleading claims regarding my arguments that spring from his preconception about Originalism’s Promise, originalism, and/or me.  For example, citing to page 95 of Originalism’s Promise, he claims that “Strang calls for conservative and libertarian legal academics to produce more [scholarship] . . . for the conservative justices to cite.”  In reality, in Section 2.4 I described how my originalist theory of precedent could practically function, one component of which would be originalist scholars creating originalist scholarship: “Part of the ‘intellectual division of labor’ in originalism is that judges have access to originalist scholarship.”  Professor TerBeek’s “interpretation” of my argument is entirely dependent on his undefended equation of originalism with conservativism and libertarianism.  Similarly, citing page 128, Professor TerBeek claims that I argued that “‘absent following the original meaning’ the justices are simply imposing their (liberal) political will on the American people.”  In reality, I argued that average Americans believed that, if the Supreme Court failed to follow the original meaning, it was “merely imposing its own policy preferences on society.”  I made no claim about liberal or conservative; that claim arose from Professor TerBeek’s own preconception. 

Most of Professor TerBeek’s assertions that Originalism’s Promise is ideologically tinged are unconventional, to put it charitably.  For instance, citing pages 20-21 and 103, he criticizes my claim that many New Deal cases are nonoriginalist.  On those pages, I detailed Home Building & Loan Ass’n v. Blaisdell, and Wickard v. Filburn, both widely regarded by scholars of all stripes as nonoriginalist.  Similarly, I claimed on page 1 that the Constitution directly and indirectly decides many important issues.  This claim is utterly conventional.  But, Professor TerBeek tries to re-characterize it as some sort of “ideological” claim because I cited to the text of the Constitution, a Roberts Court case, and a Rehnquist Court case.  On pages 17-23, I briefly recounted how originalism was eclipsed during the Progressive and New Deal eras, a claim with widespread support and one that fits, for instance, Bruce Ackerman’s second We the People volume.  But, as distorted by Professor TerBeek, I created “villains” out of Progressives and “repeat[ed] the narrative of displacement.”    

Perhaps most aggressively, Professor TerBeek accuses me of “ignor[ing] scholarship” on the history of the use of originalism.  He evidently refers to pages 12-23 where I briefly recounted originalism’s history.  I expressly stated that my summary of the history “is not a detailed review of the evidence” supporting my narrative.  Instead, I provided “a summary of the evidence” “supporting [my] claim.”  A fulsome review of the extensive historical record and secondary literature would have commanded the entire book.

Professor TerBeek’s failure to address Originalism’s Promise’s key substantive claims regarding originalism enable him to rhetorically dismiss it though mischaracterization.  A fair review of, for instance, my complex description of originalism—its description of original meaning originalism, its modest conception of constitutional construction, its originalist theory of precedent, and its role for judicial virtues—would have made it difficult to mischaracterize it as conservative or libertarian. 

Professor TerBeek’s review also fails on its own account.  He claims that originalism is a “politically powerful idea.”  He appears to believe it is powerful because it has been harnessed to political and policy ends.  But, this claim fails to account for the phenomenon.  Originalists come from a variety of intellectual, political, and socio-economic backgrounds.  They are members of different political parties, or none at all.  They aim for different policy ends.  What they all share in common is their belief that originalism is supported by sound reasons.  Professor Balkin’s summary of his own reasons for supporting originalism applies to most or all originalists: “I argued that fidelity to the Constitution requires fidelity to the original meaning.” 

Look at how originalists act.  They present at conferences; they host conferences; they comment on others’ scholarship; they debate in person and via scholarly dialogue; they create institutions to foster this debate; they host blogs on which they debate and invite critics to debate.  Professor TerBeek’s reductionist account of originalism has no place for this activity.  Is all this really about political power?  Or, are all of these scholars really in the grip of a false consciousness?  Instead, what better accounts for originalism’s success—what can account for how originalists act and argue—is that many people believe originalism is supported by sound reasons.  In Originalism’s Promise, I contributed to that debate by offering what I argued are sound reasons for originalism. 

Professor TerBeek’s thesis is the attitudinal model of judging applied to scholarship.  The attitudinal model purports to show that judges’ political preferences play a role in judicial decision-making.  Carried too far, that model reduces all judging to politics, which fails to fit the phenomenon.  Similarly here, Professor TerBeek sees politics everywhere, and that blinds him to the earnest and good faith pursuit by originalist scholars of sound reasons for how to approach constitutional interpretation. 

There are many other assertions and claims Professor TerBeek makes to which I could respond, but that would belabor the point.  Professor TerBeek’s review fails to describe Originalism’s Promise or engage with its major, innovative arguments regarding originalism.  Instead, his review mischaracterizes my arguments through the lens of political categories.  In doing so, it fails to evaluate the reasons Originalism’s Promise offered for originalism.