After a couple days to think on it, I think this post is right on. I just stumbled on a paper that stumbles, badly, over one of my two obvious thoughts about originalism. So let me point that out.
Quick review. My first obvious thought is it’s weird, if you think about it, that one of two major parties, the Republicans, has no clear policy agenda beyond being in favor of a recently-developed hermeneutic theory – originalism. The second thought is that this makes realpolitik sense, on second thought, because originalism is, as I put it, fusionist glue in hermeneutic form.
Here is a passage from a paper by the the prominent originalist theorist, Keith Whittington, that clearly, cleanly misses the second point.
For many conservatives, originalism is an inadequate and unsatisfactory approach to constitutional jurisprudence. Although many conservative legal scholars have at least rhetorically embraced some form of originalism since the Reagan years, several alternative jurisprudential philosophies are more consistent with conservative politics and produce more conservative results. Libertarian?oriented natural rights theories, pragmatic law?and?economic theories, moralistic natural law theories, and Burkean doctrinal theories could displace the emphasis on originalism and provide an alternative jurisprudential framework for rationalizing and legitimating conservative judging. It is simply a failure of imagination to think that originalism is the theory most conducive to generating conservative outcomes or uniquely situated to providing justifications for conservative legal results. Other jurisprudential theories could provide a better fit with the substantive preferences of particular factions within the conservative movement.
This is half-right but, thereby, half-wrong. No other philosophy is more consistent than originalism with conservative politics. This is because, in a way, other philosophies are always better at producing more conservative results – for any given conservative.
Back up. Whittington assumes, wrongly, that the political function of originalism, qua instrument for promoting conservatism, would be like a crank you turn to crank maximally conservative results. Not exactly. No doubt it gets policy pay-outs. But it crucially distributes those pay-outs in a way that affords stable coalition-building. Whittington’s list of competing conservative jurisprudential philosophies demonstrates this. You could never get the conservative movement to rally round libertarian-oriented natural rights, because the moral traditionalists would balk. You could never get the libertarians to rally round Burkeanism. Originalism is the 2nd-best all around, and no one’s 1st best is attainable, and everyone knows it, and knows everyone knows it.
Plus, as I mentioned in the other post, the very fact that Whittington can make his argument underscores how wrong it is. It’s good to have a theory – originalism – that is agreeable, since 2nd-best for everyone (whereas all the others are like 1st best for some, 4th best for others.) But it’s great (this is really a great feature) if this 2nd-bestness enjoys plausible deniability as too political, due to its 2nd-bestness.
How can originalism be too conservative, politically, if every conservative can easily think of a more politically advantageous theory than originalism?
That’s a pretty forceful rhetorical question, but it gets a straight answer.
Nothing says pure politics like solving a coordination problem, a trust problem, a stability problem, by everyone settling for 2nd, when 1st is out of reach.
{ 15 comments }
oldster 05.15.24 at 9:54 am
The Whittington quote does do a nice job of illustrating your point that ‘originalism’ has served the end of holding together a coalition.
But aside from that, doesn’t Whittington show his attitude towards jurisprudence from the very fact that he shops for interpretive theories with an eye to their outputs?
“several alternative jurisprudential philosophies…produce more conservative results…”
“It is simply a failure of imagination to think that originalism is the theory most conducive to generating conservative outcomes or uniquely situated to providing justifications for conservative legal results.” Generating and justifying.
Or am I misreading him? The language here is so crassly results-oriented that I suspect in the article as a whole Whittington must be criticizing the approach quoted here. I don’t have time to read it, but I suspect the dialectic must go something like, “people accuse us originalists of having chosen our interpretive philosophy merely for its instrumental value to the conservative movement –it generates conservative results and justifies conservative outcomes. But if we had that merely instrumental goal, then we’d choose more efficient instruments. So its very inefficiency is evidence that we espouse originalism for noble, disinterested reasons, not for low grubbing instrumental reasons.”
Your critique still applies, though — if “conservatism” is an incoherent alliance of competing factions (e.g. free markets vs. family values, etc.), then there may be no more instrumentally effective approach for generating the greatest number of conservative results across the coalition.
JHW 05.15.24 at 1:11 pm
I think there’s another answer to Whittington’s point, which closely aligns with your overall story. Say your single-minded goal is getting judges who will overturn Roe v. Wade. Your biggest problem is that the judges appointed by the ostensibly pro-life party are squishes: they’re not reliable pro-life votes, they don’t share your values. The last thing you want to do is give these people a natural-law theory like Adrian Vermeule’s (even if your quiet belief is that this is the correct account of law). Tell them to give the Constitution a moral reading and who’s to say the moral reading they choose will be congenial to you.
So what you do instead is you build a theory around the two facially embarrassing aspects of American constitutional law that culminated in Roe: first, that it takes a great deal of interpretative work to understand the constitutional text ostensibly being interpreted in Roe as having anything to do with abortion, and second, that Roe’s outcome is at odds with American legal practice around the time of the Fourteenth Amendment and until Roe itself, at which times abortion bans were widespread. (I am not saying these are successful critiques of Roe–in fact I think they are both mistaken–but they are embarrassing, i.e. they are the critiques that put Roe supporters on the defensive.) Take these two criticisms and turn them into a judicial philosophy and you get originalism: what matters is the constitutional text (not broader principles), interpreted according to traditional understandings especially around the time of ratification (not modern values).
And this is appealing even to legal conservatives who don’t care about abortion, or who are moderate pro-choicers, for two reasons. First is political group dynamics: you get to pose as the principled impartial jurists while your opponents are activists torturing text to get their desired results, and simultaneously you get to deliver a valuable political win to coalition allies who you think were treated unfairly (notwithstanding that you don’t necessarily agree with their ideological goal). And second–and this is just the point in the post–the same methodology can be used against other twentieth-century legal developments that conservatives dislike, such as the growth of the federal regulatory state and the expansion of constitutional criminal procedure doctrine.
This is all much less true of academic originalism, which tends to be skeptical of the second prong elevating the importance of traditional understandings (that is, they draw the “original meaning”/”original expected applications” distinction). Without that, originalism is more intellectually defensible but less capable of producing convincingly determinate answers to contested issues–and therefore less capable of doing political work. That’s why originalists in the judiciary tend to be of the Scalia variety and selectively if at all acknowledge that original meaning and original expected applications are different.
Janus Daniels 05.15.24 at 2:13 pm
Agreed except for the eternal doubt about Republican thought: stupid, deluded, or just plain evil? Whittington seems a solid case of the latter. How could anyone, highly intelligent and deeply educated in the subject, possibly write that, revise it, publish it… and not see what he did?
Based on the evidence, most ‘originalists’ are not stupid or deluded. They’re evil.
Ebenezer Scrooge 05.15.24 at 3:06 pm
To rephrase John’s point, the conservative movement needs an interpretive tool that is manipulable, but gives some appearance of rigor. Libertanianism, Burkeanism, and natural rights all give a satisfactory appearance of rigor, but there are limits to how far they can be manipulated. Pragmatism doesn’t appear very rigorous on its face. So what’s left? Textualism is possible, but it has a problem. The text is sometimes clear, and says the wrong thing from the conservative perspective. So what’s left? Originalism.
steven t johnson 05.15.24 at 4:17 pm
Ran across an interesting quote that might be relevant? “Let me first turn back to a point made above, that originalism didn’t really exist before about 2000.”
To me, it seems pretty apparent that “originalism” is an incoherent mishmash that serves only to obscure. The argument this intellectual camouflage hides a motley array of troops and weapons on the political field of battle is true enough. But it occurs to me that the direct engagement of the Supreme Court (or Cesspool, if you’re as childish as I am,) is not electoral, it’s judicial. In this field, the very meaningless of originalism leaves only the claim that the Supreme Court is the arbiter of the Constitution, period. Questioning that is the equivalent of questioning the role of Jesus in writing the damned thing in the first place… Except with a more conveniently secular-sounding expression of same.
When I think of things that happened around 2000 that made it essential to exalt the Constitution and the Supreme-ly non-political partisans, Bush v. Gore comes to mind. I will leave it to others to wonder, “What mind?”
Mike T 05.16.24 at 12:48 am
Strong ties here to Gladwell’s infamous Ketchup Conundrum.
https://www.newyorker.com/magazine/2004/09/06/the-ketchup-conundrum
Alan White 05.16.24 at 2:53 am
I think that Scrooge@4 has seen all the ghosts of time on this.
nastywoman 05.16.24 at 4:21 pm
But the best Succo is Rao’s!
dilbert dogbert 05.17.24 at 12:40 am
MMMM?
All these arguments strain the peabrain.
???? Do conservative results = white male christianist supremacy???
When I read Originalism the peabrain sees the 13 original colonies. Which of the constitutional amendments should be stricken from the Originalist constitution? Maybe they lust for the Original Confederacy?
dilbert dogbert 05.19.24 at 3:28 pm
Kenny has fewer words:
The modern conservative is engaged in one of man’s oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness.
John Kenneth Galbraith
KT2 05.20.24 at 2:23 am
@10 “the search for a superior moral justification for selfishness”
… which seems to result in; Leviathan 17.2 phrase “… but greater Families (for their own security) enlarge their Dominions, upon all pretences of danger, and fear of Invasion, or assistance that may be given to Invaders, endeavour as much as they can, to subdue, or weaken their neighbours, by open force, and secret arts, for want of other Caution, justly; and are remembred for it in after ages with honour.”
https://pressbooks.library.torontomu.ca/leviathan/chapter/chapter-xvii-of-the-causes-generation-and-definition-of-a-common-wealth/
Timothy Sommers 05.21.24 at 8:38 pm
I think we have at least two reasons to doubt your reason two.
(1) I have the sad, sad duty of teaching philosophy of law right now and I find for at least the last decade, probably more like two, SCOTUS decisions are not based on any kind of reasoning. There’s just no connection between what the conservative justices “argue for” when they “interpret” the Constitution. There’s no need for them to work under a label or umbrella, they aren’t constrained by anything as it is, and they openly don’t care. And there are no libertarians on the court, nor do I think there ever have been. (Please, correct me, I am not as certain on that…)
(2) It’s been not that uncommon for a while now for conservative legal theorists to openly admit that “originalism” has always been a cynical strategy to achieve political ends. (Even reactionaries like Vermule are open on this topic.) I don’t see how it can be glue for people who drop it and pick up as needed while telling that’s what they are doing – whatever the hell they want to.
Owned!
Alex SL 05.22.24 at 1:55 am
I think this strategic angle may be overthinking it. Sure, there will be people who come up with good strategies like “what if we found a ‘news’ network that keeps people angry at all times so that they vote against their own economic interests” or “how about we systematically fund, network, and influence young law students to seed the judiciary with our supporters”, but most people, even powerful and rich people, are rather stupid and driven primarily by ego and/or competing for influence within their tribe, and even the ones who stumble into successful schemes tend to overplay their hands or benefit from coincidence.
A bizarre idiosyncrasy of the USA is how many of its citizens venerate the founding fathers as something like divinely inspired prophets and the constitution as something like holy scripture. Nationalists of other countries may also think, against all evidence, that their own country is the greatest in the world and deny its war crimes and injustices, but at least they generally understand that if the constitution is outdated, you can simply write a new one at an opportune moment. The nation itself is what matters, not a piece of yellowing paper.
Point is, originalism may be attractive not primarily as a strategy to hold together a coalition, but simply because of this weird civic religion. If you can claim that the founding fathers wanted the same as you want, you are already two thirds along the way to winning the debate. And because of that veneration of the constitution as holy scripture, liberals are, unfortunately, stuck with trying to argue the same, despite it being quite clear that most of the founding fathers would have been flabbergasted by ideas like, say, black people voting in elections or women wearing trousers.
Tm 05.27.24 at 2:42 pm
It seems remarkable that this author openly admits the function of “originalism”:
“rationalizing and legitimating conservative judging”
“We invented this legal theory for the sole purpose of bending jurisprudence to our political preferences” is a hell of an admission but these are the times we live in: the enemies of democracy and the rule of law don’t even bother to hide their goals any more, they just say it openly. And there are still liberals out there who don’t get it, and even act outraged when other liberals point out wjhat the fascists are saying openly.
Tm 05.28.24 at 8:28 am
Btw Slate just has a series out on originalism:
https://slate.com/originalism
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