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05/07/2021

David Forte on Hadley Arkes et al. on Originalism
Michael Ramsey

At Law & Liberty, David Forte (Cleveland State): Originalism and Its Discontents (responding to this essay by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker).  From the introduction: 

The King is Dead. Long Live the King.

So do our friends, the authors of “A Better Originalism,” intone their unsympathetic obsequies over the corpse of originalism, struck dead, they declare, by the hand of Justice Neil Gorsuch in Bostock v. Clayton County. One can understand their dismay over the forms that originalism has often taken. Justice Antonin Scalia, for example, often dismissed the moral imperative behind certain constitutional provisions. The authors note appropriately, for example, that in Obergefell v. Hodges, he declared “[The] substance of today’s decree is not of immense personal importance to me.” Such a perspective could, if adopted rigorously, turn respect for the positive law into positivism. Moreover, the fear is that such an ungrounded legalism results in relativism.

The authors declare that Justice Gorsuch’s textualism signals “the failure of originalist jurisprudence,” and they then go a step further by condemning a jurisprudence that “solely relies on proceduralist bromides,” chiding that “[t]oday’s legal eagles exalt procedure over substance.” I do not dwell on those rhetorical overstatements, but turn to the authors’ more fully justified critique that “the only rational way to interpret a legal text is both through its plain meaning and the meaning given to it by the distinct legislative body (or plebiscite) that ratified it.” In fact, that view of textualism was championed by Justice Samuel Alito in his dissent to Bostock.