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Mark Pulliam on George Thomas on Originalism
Michael Ramsey

At Law & Liberty, Mark Pulliam: Does the Written Constitution Matter? (reviewing [unfavorably] The (Un)Written Constitution (Oxford University Press 2021) by George Thomas).  From the introduction:

Claremont McKenna College professor George Thomas, in his compact monograph The (Un)Written Constitution (2021), tries to turn back the clock to the halcyon days of freewheeling judicial activism. Clocking in at a mere 147 pages of text, Thomas purports to deconstruct the central claims of originalism and to debunk its chief proponent, the late Justice Antonin Scalia. (Inexplicably, Robert Bork merits a single mention.) This is an ambitious goal for a book containing five slim chapters. Does he succeed? In a word, no.  

Thomas begins by adducing—in aha! fashion—examples of the obvious: the Constitution (like all texts) is not self-executing; not all language in the Constitution has a self-evident literal meaning (“the text does not explain itself”); Justices and scholars have interpreted the Constitution differently throughout history, sometimes in a dubious manner; even those scholars purporting to be originalists often disagree regarding constitutional interpretation in particular contexts; some critics (citing Jonathan Gienapp and Eric Segall in particular) are skeptical of the claims of originalism; Justices from prior eras exhibited beliefs and attitudes in their opinions that may strike the modern sensibility as unfashionable or unenlightened; originalism, at least as espoused by Scalia in his dissenting opinions, would deny certain groups political gains granted by the Court (e.g., Obergefell v. Hodges) which progressive thinkers now take for granted, etc.

His conclusion: It is impossible to make sense of the Constitution by looking only at the words on the page....

And from the conclusion:

Thomas is correct that most of the disputes among Justices and constitutional scholars are ultimately based on differing “political theories”; “these unwritten ideas drive our most persistent constitutional debates.” This admission inadvertently reveals the weakness of Thomas’s entire thesis. If so many readings of the “unwritten Constitution” are possible, doesn’t this prove the wisdom of unelected judges exercising restraint, and leaving policymaking to the elected branches? Thomas never squarely addresses this question. Content with the Court’s modern role as “Platonic Guardians,” as described by Judge Learned Hand in the 1958 Oliver Wendell Holmes Lectures, Thomas argues that judicial lawmaking is not just “legitimate,” it is “essential.” He concludes: “We are always going to have to make judgments about how best to apply the Constitution to our current circumstances and those judgments will always be subject to debate.” This is a trite tautology, not a reasoned argument.

Unlike Akhil Reed Amar’s similarly-titled 2012 book, The (Un)Written Constitution is superficial, derivative, and entirely predictable. At most, it is suitable for stimulating one side of a discussion in an undergraduate seminar, as a counterpoint to Bork’s The Tempting of America (1990), Greg Weiner’s The Political Constitution (2019), or a similar brief for judicial restraint. ...

There's an important point here about nonoriginalist scholarship that's worth further highlighting.  Often nonoriginalists seem to think that debunking originalism makes the case for nonoriginalist judging.  As the review says, it does not.  If the Constitution's original meaning is systematically indeterminate, a natural conclusion is that judges should refrain from constitutional adjudication.  (This is Eric Segall's position, for the most part.)  It takes an additional argument to say that if the Constitution's original meaning is indeterminate, judges should supply a meaning of their own choosing.