THE STRUCTURE OF INTERPRETIVE REVOLUTIONS.

• Date: 22 June 2020
• Author: Telman, D.A. Jeremy

ORIGINALISM'S PROMISE: A NATURAL LAW ACCOUNT OF THE AMERICAN CONSTITUTION. By Lee J. Strang.* New York, NY: Cambridge University Press. 2019. Pp. xiv + 326. $110 (hardcover); $34.99 (paperback)

1. INTRODUCTION

   According to Lee Strang, "[o]riginalism's promise is to make sense of our constitutional practice while, at the same time, painting it in its best light" (p. 2). Professor Strang's book thus strives both to persuade his readers that originalism is our law (p. 2) and that interpreting the Constitution in accordance with its original meaning promotes human flourishing (pp. 1-2). The book encapsulates at least a decade of work and thought. Strang's book possesses impressive historical scope, intellectual range, and philosophical rigor. Strang hews a path that accommodates the various strains of originalism seemingly without sacrificing the principles of fixity and constraint that define mainstream originalism. (2)

   In Part II of this Essay, I summarize Strang's defense of originalism. Actually, Strang provides two independent but complementary defenses of originalism. The first, which he calls the communication model, offers historical and prudential arguments. The second, which he calls the coordination model, sounds in Aristotelian virtue ethics and makes the normative case for originalism. Strang's book enters a crowded market, with recent intelligent and highly readable works on originalism by Eric Segall (3) and Ilan Wurman. (4) Strang's book is far denser than theirs and makes more significant demands on its readers. Nonetheless, the book demands careful attention as the most important systematic defense of originalism since McGinnis and Rappaport's Originalism and the Good Constitution. (5 *)

   In Part III, I raise four objections to Strang's theory of originalism. First, while Strang's theory accounts for and accommodates many criticisms of originalist theory, his approach inadequately addresses two problems that pose special challenges to his version of originalism. The first such challenge is that while Strang recognizes that the Constitution's meaning is indeterminate, he insists that indeterminacy is rarely an impediment to the originalist goal of fixing the Constitution's meaning. The second challenge is the level of generality at which the Constitution's original meaning binds us. The second objection notes that Strang's theory assumes an order of operations for reasons he never articulates, privileging ideologically driven and outcome-determinative "closure rules." If one changes the order of operations, given the range of originalist views, one can use Strang's theory to defend or criticize nearly any constitutional decision on originalist grounds. Third, Strang achieves consensus among originalist theories by downplaying genuine differences among them. As a result, Strang makes contemporary originalism seem more coherent and unified than it actually is. At the same time, Strang treats the difference between originalism and non-originalism as a difference in kind when it can be better understood as a matter of degree. Finally, Strang presents a heavily majoritarian view of the Constitution, acknowledging no special role for courts to step in to address encroachments on fundamental constitutional rights or on constitutional protections of minority groups.

   In Part IV, I discuss Strang's learned, careful, theoretically sophisticated, and well-informed work as evidence that, unbeknownst to its practitioners, the originalist paradigm is in crisis. As the subject matter of interpretive theories raises new challenges to those theories, they become increasingly complex in order to accommodate the theories to the data. Eventually, the theories collapse under the weight of their own appendages. Out of the wreckage, new theories arise that provide more satisfying answers to the primary questions the theories aim to address. The very complexity and sophistication of contemporary academic originalism propels it away from the primary goal of the originalist movement, judicial restraint, and away from popular originalism, which exemplifies a popular constitutionalism to which books like Strang's cannot appeal. Part V briefly concludes with a few paragraphs describing a new post-originalist paradigm.

   Despite my reservations about Strang's approach, I admire the intellectual rigor and good intentions that he brings to his project. Strang's fellow travelers on the originalist thoroughfare will find much truth (or ammunition) in his characterizations of our constitutional history. Strang's work provides ample fodder for debate both within and outside of the originalist camp. Wherever one happens to sit on the spectrum from originalism to non-originalism, one can benefit from Strang's account of constitutional history and his singular contributions to the theory of constitutional interpretation. (II. II.)

2. ORIGINALISM'S PROMISE AND STRANG'S COMPROMISES

   In this Part, I aim to give a fair summary of Strang's argument. The task is daunting. Strang's book is very carefully reasoned, with many interlocking parts. In addition, this Part flags some of Strang's theoretical and factual claims with which I engage critically in more detail in Part III.

   1. ORIGINALISM ALL THE WAY DOWN

      The book's first chapter provides a history of originalism going back to the Founding. Here, although Strang offers some new evidence, for the most part, he treads familiar territory laid out in scholarship by Christopher Wolfe, (6) Jonathan O'Neill, (7) and Howard Gillman. (8 9) Strang presents the familiar narrative succinctly and well. Creating a coherent narrative history of originalism presents a two-fold challenge. The first challenge is historical. There was a not a great deal of constitutional adjudication in the nineteenth century, and the Justices were not always consistent or systematic in their approach. Strang acknowledges "notable errors" (p. 16), but those "blips" (p. 16 n.35) included landmark cases such as Dred Scott v. Sanford (9) and The Legal Tender Cases. (10 11) Second, as Strang notes, originalism is a "family of theories of constitutional interpretation" (p. 10), and the variety of originalist approaches makes it difficult to know what it means to say that Supreme Court opinions are or are not originalist. Nonetheless, Strang presents a narrative in which our constitutional history was largely consistent with originalism. (11) His argument here parallels those of Will Baude and Stephen Sachs that "originalism is our law," although Baude and Sachs arrive at their position by means of a positivist turn. (12) Strang, as we shall see, designates for positivism only a supporting role in a broader, natural-law account.

      At some point, perhaps beginning in the late nineteenth century, or perhaps as late as the New Deal, originalism was displaced. According to Strang, these changes were caused by a combination of external stimuli and developments within the legal academy (p. 17). External factors included the desire of constitutional actors during the Progressive Era for a federal government with more expansive powers and post-Darwinian scientism that pervaded society generally and also reached into the Langdellian legal academy (p. 19). That academy eventually succumbed to legal realism, which undermined belief in legal determinacy (p. 17).

      From the New Deal to the 1960s, according to Strang, "originalism was almost entirely eclipsed" (p. 21), until scholars like Robert Bork and Raoul Berger responded with first-generation originalist intentionalism (pp. 23-25). However, this early version of originalism seemed to have been completely demolished by its critics in the 1980s. (13) Five originalist responses to the demolition of intentionalism undergird Strang's version of originalism. First, originalism switched its focus, or at least its rhetoric, from original intention to original meaning. Second, originalists acknowledged that originalist interpretation has to be supplemented with construction. Third, many originalists reconciled themselves to accepting at least some non-originalist precedent. Fourth, originalists acknowledged that constitutional interpretation entails the exercise of discretion. Fifth, originalists offered various normative justifications for their approach (pp. 26-27).

      Strang's originalism draws strength from its surface reasonableness. Strang nimbly accommodates seemingly contradictory impulses. Strang finds that the original intent, original meaning, and original methods approaches to originalism are not "substantively distinct" (p. 30). He embraces constitutional construction (p. 33) and non-originalist precedent when doing so "is important for the common good" (p. 34). Strang's Goldilocks approach to originalism risks rendering it a rather insipid theoretical porridge. Eric Segall, an outspoken critic of originalism, focuses on the middle three of Strang's five moves and contends that originalism is now no different from the non-originalist legal realism it opposes. Originalism, for Segall, is a form of rhetorical posturing, in which declarations of adherence to originalism communicate little more than allegiance to a libertarian conservative political faith. (14) Strang's project avoids Segall's criticisms through rigorous cabining of uncertainty, construction, and judicial discretion. The success of Strang's project turns on the persuasiveness of his account of our constitutional history in Chapters 1-3, and the attractiveness of the normative justification that he provides for originalism in Chapter 4, which is rooted in Aristotelian virtue ethics.

   2. COMMUNICATION, DEFERENCE, AND PRECEDENT

      Strang's second chapter introduces his constitutional communication model of originalism. His first step in elucidating this model consists of an argument linking original meaning, original intentions, and original methods. The text means what the Framers intended it to mean, and they understood that...