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10/23/2020

John McGinnis on the Confirmation Hearings
Michael Ramsey

At Law & Liberty, John McGinnis: A Clash of Constitutions. From the introduction: 

The Senate hearing on the nomination of Amy Coney Barrett to the Supreme Court shows that we effectively have two different Constitutions today, because the interpretive methodologies of Democratic and Republican political actors diverge so dramatically. Republicans embrace originalism as a mode of interpretation. Democrats aspire to a method that bends the Constitution toward “the moral arc of the universe” where that arc traces the parabola of progressive politics.

The implications of this divergence are profound both for the nation and for academic debates over originalism. We are in a period of political polarization unprecedented since at least the New Deal and probably since the 19th century. Successive waves of partisanship have now engulfed our fundamental document, threatening a kind of legal instability we have not seen in the last 150 years. It will likely get worse, particularly if Democrats go through with threats of court packing, which will inevitably beget more and more court packing, turning our highest tribunal into something more resembling the British House of Lords. Academically, the dramatic divergence shows that the positive argument that originalism should be followed simply because it is our law is inadequate because high officials do not agree on the rule of recognition—that is, the standard by which we determine what constitutes constitutional law.

And on the second point, from further along:

The clash of constitutions displayed at the hearing also has implications for the debate about how we ought to justify originalism. Will Baude and Stephen Sachs, two excellent young scholars, have suggested a positivist basis for originalism. According to their argument, we should follow originalism because it is the law in the sense that the great positivist H.L.A. Hart meant law. That is, originalism is the rule of recognition by which officials determine the law. To be sure, Baude and Sachs concede there may be disagreements about exactly what originalism requires, but they claim that there is a consensus in its favor among judges. They support their views largely by reference to Supreme Court opinions where they argue that justices—even modern left-liberals—gesture to originalism. Mike Rappaport and I have both criticized this argument, suggesting that in many important cases, justices fail to make good-faith efforts to follow originalism.

But judges are not the only officials responsible for determining the content of the Constitution, as Baude concedes. Legislators and presidents are also high government officials who make such determinations all the time, and who implicitly or explicitly embrace a rule of recognition. And the rule of recognition guiding the important officials of the Democratic Party today is emphatically not originalism. This sociological fact (and the Hartian view of law is ultimately rooted in such facts) also counts heavily against the notion that there is an official consensus in favor of originalism.

That lack of consensus does not mean we should abandon originalism. Originalism is certainly an important contender for the rule of recognition, as Michael Ramsey has observed, and the Supreme Court has at times in our history regularly followed it. But to justify originalism as the strongest contender we need to appeal to normative arguments of the kind that Mike Rappaport and I and others have made. Originalism is the best rule for interpreting the Constitution, even if some diverge from it.