John McGinnis on Originalism's Enemies
Michael Ramsey
At Law & Liberty, John McGinnis: The Empire Strikes Back Against Originalism (from last week, but I was on vacation). From the introduction:
The nation’s legal culture ultimately determines how the Constitution is interpreted. When originalism had fallen into desuetude, the Warren Court decided cases without substantial, if any, consideration of very plausible originalist positions. It did not even deign to respond to overwhelmingly powerful originalist arguments, such as those made by Justice John Marshall Harlan in dissent in Reynolds v. Sims. That kind of performance is no longer conceivable because originalism has established an important foothold in the legal culture.
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The culture of originalism has been strengthened by three forces working in combination. The first is the appointment of originalist justices and judges. President Trump has especially accelerated this force by appointing lower court judges who pursue originalism in their own opinions, using original meaning to cabin nonoriginalist Supreme Court precedents. The second is the Federalist Society which provides a forum for debate and a hospitable shelter for originalist scholars who live in a still inhospitable academic world. Finally, originalist legal scholars, while relatively few, have been exerting an outsized influence, refining theories of originalism in dialogue with one another and unpacking the legal meaning of provisions, like the Due Process Clause, that may seem opaque to the casual reader.
But the legal and opinion establishment is decidedly not originalist, and it is striking back at all these sources of influence. First, a committee of federal judges whose membership leans heavily against originalism, has circulated a draft opinion (discussed in more detail here by Ed Whelan and here by Mark Pulliam) suggesting that judges cannot be members of the Federalist Society because it may call their impartiality into question. ...
Second, in my admittedly subjective sense, since sometime before Trump’s election, law schools have become less willing to hire originalists than they once were, despite the increasing importance of originalist arguments in the courts. ...
But perhaps most representative of the growing establishment pushback on originalism is the appearance of Emily Bazelon’s full-length article in the New York Times Magazine, the house organ of the liberal establishment, attacking originalism. The concern expressed at the end of the article—that originalism is even making inroads with liberals—suggests that the piece is an attempt to keep the virus from spreading.
And in conclusion:
Bazelon’s article ironically shows that originalism has a powerful appeal that no amount of editorializing can squelch. Contrary to Bazelon’s claims, it has been around since the early republic. As James Madison stated: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” It continues to exert a hold on popular sentiment: That’s the reason that all sides in the Donald Trump impeachment debate, as in the Bill Clinton impeachment debate, appealed to original meaning. Today, this tradition and common sense are reinforced by scholars and judges more than at any time in the last century. We do not yet have a fully originalist legal culture, but the currents are moving in that direction.