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11/15/2019

Federalist Society National Lawyers Convention, Featuring Originalism
Michael Ramsey

The Federalist Society's National Lawyers Convention is this weekend (Thursday through Saturday) in Washington D.C, with the title "Originalism" and the opening panel "What Is Originalism?"  Video of Thursday's sessions is available here.

At Dorf on Law, Michael Dorf has his contribution to the panel "Why Be, or Not Be, an Originalist?"  He concludes:

But if one defines the meaning of constitutional terms at a sufficiently high level of generality in order to avoid odious results, originalism ceases to be a distinctive approach to constitutional interpretation. Jack Balkin got a lot of attention for arguing that originalism based on original public meaning is indistinguishable from living constitutionalism, but the point had already been made by others, including such notable nonoriginalists as Ronald Dworkin.

And if originalism isn't really any different from living constitutionalism, the right answer to the question of whether or not to be an originalist is "it doesn't matter."

...  The problem, however, is that while original public meaning originalism does not fundamentally differ from living Constitutionalism, many judges and the public at large continue to adhere to or support the discredited expectations-and-intentions version of originalism. They borrow the patina of respectability that scholars and learned judges give to originalism via resort to original public meaning and use it to purport to justify appeals based on expectations and intentions. ...

Thus, one very good reason not to be an originalist is that even if you are very careful only to endorse public-meaning originalism, your defense of any form of originalism will be used to give unearned credibility to the widely-and-rightly discredited expectations-and-intentions originalism. Given that public-meaning originalism is essentially living Constitutionalism, the better course is the one that leads to less confusion: Don't claim to be an originalist.

...  Indeed, confusion may be too charitable a term for the phenomenon I've just described. "Bait and switch" seems more accurate. Scholars and other sophisticates defend original public meaning but judges practice original expectations and intentions, which politicians sell to the public as determinate.

Yet even that account may be too generous. A more accurate description is probably something like this: Judges who call themselves originalist sometimes invoke original public meaning, sometimes invoke original expectations and intentions, and sometimes simply ignore original understanding altogether, but in any event they vote their ideological druthers. And it happens that the judges and justices who call themselves originalists have conservative ideological druthers.

...

So in the end I suppose the answer to the question whether a judge should be an originalist depends on whether the judge wants a means to shield from the public and possibly even from herself the fact that her values and ideology play a very large role in how she resolves contested legal questions.

To respond briefly:  

(1) I do not agree that original public meaning originalism is the same as living constitutionalism.  Nor do I agree that original public meaning originalism is wholly independent of original intent and expectations.  Original intent and expectations are relevant to (but not decisive of) original meaning.

(2) In any event, if judges are doing bad originalism (and, to be sure, judges are human) the answer is better originalism.

But more importantly, congratulations to the Federalist Society for inviting liberal critics such as Professor Dorf and giving them a prominent role in such a prominent convention.  The Society was founded on the goal to provide fair debate on important legal topics and it's great to see it remain true to its founding principles.