ORIGINALISM'S FALSE PROMISE.
|Segall, Eric J.
Scholars writing books defending originalism these days have a difficult task. In 1990, the job would have been much simpler. The defender of originalism would summarize the views of Robert Bork, Raoul Berger, Earl Maltz, and a few others, and then suggest that judges should defer to the original intent of the Constitution's drafters and ratifiers and uphold state and federal laws unless the challenged statutes clearly violated that intent. (1) Societal change, an originalist would have argued, if needed, should come from the voters and their representatives, not from unelected, life-tenured judges. (2) Originalism was not a fancy theory of linguistic calisthenics or a philosophical commitment to natural law or a targeted attempt to bring back aggressive judicial review of economic legislation. Rather, it was a directive to judges to abstain from society's most controversial social, cultural, and political issues absent clear constitutional error by governmental officials. Non-originalists would have countered that judges have a larger role to play when they interpret the Constitution's imprecise rights-granting provisions, and the debate would continue on those terms.
Alas, today's originalism is not an "it" but a "they." Defenders of the family of varied theories labelled "originalism" must now address a complex panoply of justifications for and consequences of academic musings that may or may not persuade judges. Perhaps the leading academic originalist of our time, Professor Lawrence Solum, has written hundreds of thousands of words about originalism in essays, articles, and blog posts while rarely mentioning how real cases should be decided.
Meanwhile, some originalists, like Professors Gary Lawson and Michael Paulsen, say judges should be guided exclusively by original meaning even if that commitment requires overturning every non-originalist precedent the Supreme Court has ever produced. (3) Others think judges should take into account reliance and other interests when faced with non-originalist cases. (4) At the same time, two of our leading younger originalists, Professors Will Baude and Stephen Sachs, claim originalism is already our law and has always been our law. They work overtime to unpersuasively transform obviously non-originalist Supreme Court decisions into cases that can fit into a broad originalist mold that most non-originalists would be happy to accept. (5) So many theories, so much time.
Into this quagmire comes Professor Lee Strang trying to make sense of it all. His book, "Originalism's Promise: A Natural Law Account of the American Constitution," links originalism with the common good and personal virtue. (6) The book weaves together theories of adjudication, interpretation, construction, precedent, and even how to live the good life all to argue that originalism "best advances human flourishing" in an "Aristotelian" sense. (7) According to Strang, both in and out of the courts, originalism will lead us to the promised land if we just rally behind the original meaning of our sacred foundational document. Returning to and then abiding by the past aspirations of our founding fathers is the way to a bright and prosperous future.
Reviewing such an ambitious enterprise is no easy feat. A good rule for academics is to only write about one's expertise. Readers will have to look elsewhere for a nuanced discussion of Aristotelian virtue and what it takes to live the good life. Instead, this review details Strang's views on constitutional interpretation and construction, different theories of originalism, how precedent and originalism come together (or not), and how our Constitution has been and should be applied by judges and other political actors.
On these issues, Strang makes some interesting theoretical contributions to current academic debates over originalism and non-originalism and how judges should decide hard cases. His attempt to reconcile non-originalist precedent with current societal needs at least recognizes the tension between originalist ideals and our largely non-originalist world. Unfortunately, his implementation of those theories is disappointing because he manipulates his rich constructs to advocate for results consistent with his conservative political priors. Even worse, his discussion of two landmark Supreme Court cases, Brown v. Board of Education, (8) and Roe v. Wade, (9) is offensive and has no place in this kind of academic book (or any book).
Originalism's Promise could have had great promise had Professor Strang applied his originalist theories to real cases in a principled and consistent manner. Alas, such is not the case, which demonstrates yet again that originalism is, for many of its proponents, a cover for value judgments made on other grounds. (10)
That being said, Professor Strang is an excellent scholar and a fine person, so it appears that, once again, originalism becomes not a matter of text, history, and law but more of a religious devotion to an ideal that scars most of the people who try to deploy it. (11) Professor Strang even says that "one can think of the Constitution's original meaning like a religious tradition's sacred text that anchors the tradition and that has the power to pull the tradition back to its own best self." (12) Professor Strang's devotion to originalism is religious in nature.
Part I summarizes Professor Strang's efforts to define originalism and unify different academic theories. Part II sets forth his views on judicial deference in constitutional construction and approves of the framework but criticizes its application. Part III discusses Strang's attempts to reconcile originalism with non-originalist precedent and again finds the rhetoric interesting but the execution mystifying. Part IV provides a few final thoughts on how most academic originalists have failed to adequately wrestle with a non-originalist Supreme Court and what that means on the ground for constitutional law and politics.
The Founders as Scripture Givers
Since Professor Strang sets out to defend originalism, he must define what originalism means. He says that originalism "is the theory of constitutional interpretation that identifies the Constitution's original meaning as its authoritative meaning. This meaning is the text's public meaning when that text was ratified. Judges especially, but all federal and state officers--and all of us as American citizens--should utilize originalism to interpret our Constitution." (13) This definition suggests that originalism is not just a rule of thumb for judges to apply to constitutional cases, but a guide for all of us as to how to best think about the Constitution's text. In fact, throughout the book, Strang lionizes the founding, the founders, and the document they wrote to an extent rare for even conservative originalist scholars. About the Constitution, Professor Strang says the following:
It is a source of national identity, substituting for the religious, linguistic, cultural, or ethnic bonds that hold together many other countries. It is the pinnacle of our legal system, and from its perch it decides many of the most important issues of today, not to mention those in the past. The Constitution is our nation's legal and--to only a slightly lesser degree--cultural "trump card" on these important issues. And yet, Americans disagree about its meaning and how to arrive at its meaning. (14) This theme of constitutional idolatry runs throughout the book, but surprisingly, slavery, sexism, and segregation are barely mentioned. The index does not list slavery. (l5) Professor Strang does talk about the infamous Dred Scott case, (16) but only to suggest that the decision was caused by the Justices' replacement of "the Fifth Amendment's ratifiers' meaning with the Supreme Court's nonoriginalist meaning." (17) This canard, also suggested by Supreme Court Justice Neil Gorsuch in his cowboy inspired book, "A Republic, If You Can Keep It," is false. (18) As I wrote in my review of Gorsuch's book, the majority in Dred Scott employed an obviously originalist analysis when reaching its twin odious conclusions that Congress could not prohibit slavery in the territories and that Black Americans were not, and could not be, citizens of the United States. (19) Here is Chief Justice Taney in a long section of the opinion that, in isolation or a different case, would bring tears of joy to the late Justice Scalia and provide much comfort to Professor Strang:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty. (20) I doubt professor Strang...
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