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02/27/2020

Jeremy Telman Reviews "Originalism's Promise" by Lee Strang
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted The Structure of Interpretive Revolutions (Constitutional Commentary, forthcoming) (30 pages) on SSRN.  Here is the abstract:

This Essay reviews Lee Strang’s natural law defense of originalism, Originalism’s Promise. The Essay first summarizes Strang’s argument, which has both descriptive and normative components. The descriptive component, Strang’s “communication model,” offers both historical and prudential arguments for why we should accept an originalist account of our constitutional history and practice. The normative component, Strang’s “coordination model,” offers an Aristotelian defense of originalism as the best way to promote human flourishing and the common good.

This Essay next offers four criticisms of Strang’s approach. First, Strang understates the problems of constitutional indeterminacy, because he has not adequately addressed the level of generality problem. Second, Strang’s communication model adopts an under-theorized order of operations. If one follows Strang’s approach but changes the order of operations, one can manipulate the theory to produce any pre-determined outcome. Third, Strang exaggerates both the extent of consensus among originalist scholars and the qualitative differences between originalism and non-originalism. Finally, Strang presents a heavily majoritarian perspective on the Constitution, which cannot account for the role of federal courts in protecting individual rights against majoritarian encroachments.

The Essay then uses Strang’s book as an illustration of the collapse of the originalist paradigm. Originalism is now a dysfunctional family of related theories. It has become too incoherent to serve as a useful description of our constitutional tradition, nor can its adherents agree on its normative basis. At the same time, Strang’s book illustrates the increasing divide between originalist scholarship and the popular constitutionalism that animated early originalism. While popular originalism still preaches judicial restraint, academic originalism confidently advocates reversal of precedent, while providing the federal judiciary with the power to veto state and federal laws and regulations. The Essay concludes by indicating some of the characteristics of the emerging post-originalist paradigm for understanding our tradition of constitutional interpretation and implementation.

Here is a link to Professor Strang's book, Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge Univ. Press 2019).  As an aside, the review is not as negative as the abstract suggests, and it contains a good bit of praise for Professor Strang's project (while at the same time making some sharply pointed criticisms).