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12/13/2021

Another Look at Paul Waldman’s Criticism of Originalism/Originalists
David Weisberg

Prof. Ramsey’s recent post, “Originalism and a Constitutional Prohibition on Abortion,” begins with the assertion that, “[a]mong the harshest criticisms of originalism is that it is a mere cover for judges enacting the policy preferences of the conservative legal movement.”  I think it would be more correct to say that among the harshest criticisms of orginalists is that they use originalism as a mere cover.  There is an important difference.

Paul Waldman, writing in the Washington Post, claims that the recent arguments in Dobbs reveal that Trump’s three Supreme Court nominees perpetrated “a lie, scam, con” when they testified that originalism, as they understood it, was a judicial philosophy that was neutral as to the outcome of any particular legal case or issue.  That is not a criticism of originalism.  It is instead a criticism of particular individuals who identify as originalists.

Prof. Ramsey, responding to Waldman, says that any result in Dobbs that weakens or overturns Roe and its progeny “actually shows the opposite of Waldman’s claim,” because most conservatives would want to prohibit all abortions except in circumstances of mortal physical danger to the woman.  Nevertheless, such a prohibition could never be part of a decision in Dobbs or any other case decided by originalists, since “the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution’s original meaning does not protect unborn life.” 

I’d like to play devil’s advocate here and make two points.  First, I think Waldman would say that “the overwhelming mainstream originalist position” that Ramsey refers to is a sham and a lie, just like the testimony Trump’s nominees provided to the Judiciary Committee.  A result in Dobbs that weakens or overturns the Roe line of cases is one step, Waldman would say, on the road to barring abortions entirely.  Although originalists now say the Constitution does not protect unborn life, when they sense the public is more ready to accept the opposite position the Court will issue such a decision, because originalists act in bad faith all the time.  This position is certainly consistent with Waldman’s original complaint about originalist nominees testifying in bad faith.

Secondly, Prof. Ramsey asserts: “It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.”  Here things get particularly dicey.  Suppose a living-constitutionalist argued that, because the ideal liberal policy is no state or federal restrictions whatsoever on abortions, the Court’s opinions in Roe and its progeny—which do permit increasingly rigorous state regulations as pregnancy approaches term—must therefore be deemed to be soundly grounded in the Constitution and not in the policy preferences of the various Court majorities.  I think originalists/textualists would not accept that argument.

When one questions the good faith of the practitioners of a legal theory, rather than analyzing and criticizing the legal theory itself, a disheartening symmetry emerges.  Each side can say of the other: we do not believe that the reasons stated in your judicial opinions or your scholarly articles are your true reasons; the one true reason is your policy preference.  Similarly, each side can say: in deciding Case X, we did not adopt the most extreme position on the spectrum of policy preferences; this proves our decision is grounded in law and not in policy preference.  And the “liberal” side says that weakening or overturning Roe is a step toward a future originalist decision that the Constitution bans abortions in almost all circumstances, while the “conservative” side says that Roe itself is a first step toward a future living-constitutionalist holding that the Constitution prohibits any federal or state regulation of abortion.

The lesson, I think, is this: attacking the good faith and sincerity of an opponent is ultimately a dead end, because precisely the same attack we make on others can be made on us.  Waldman’s approach cannot be shown to be factually incorrect—we cannot enter the minds of those with whom we disagree (or even agree) to determine whether their opinions and decisions are made in good faith.  But his approach can be shown to be a waste of everyone’s time.