Month: May 2017

Response to Garnett, Sachs, and Green on Originalism’s Intellectual History

Cross-Posted at The Faculty Lounge

Richard Garnett and Stephen Sachs, even if only by Twitter,  and a blog post by Chris Green at The Originalism Blog, responded to my post about the intellectual history of originalism (herehere, and here). A grad student could not ask for more.

Garnett and Sachs question whether it is problematic for originalism to have been “born in sin.” Sachs wrote: “Evolution by natural selection is also a powerful idea, but the early Darwinists were a buncha weirdos,” and Garnett followed up by asking, “So, do today’s progressives want to own the views of Holmes, Croly, and Wilson on race? Of Diderot on entrails?”

Twitter is a less than ideal medium for communicating nuanced thoughts and I do not think Sachs was attempting to draw a tight analogy between originalism and Darwinian natural selection, and I understand his point. Nor can I chide Garnett, at least not too much, for pointing out that many Progressive-era thinkers held racist views (though Garnett fails to note that the constitutional conservatives of the day also held these views). While it is now fashionable for libertarian and conservative scholars to point to the progressive era as the point the constitutional train went off the tracks — see Ken Kersch’s and Steven Teles’s contributions to this volume — the implicit comparison between capital-p Progressivism (a movement that can be difficult to define with specificity (see Daniel Rodgers’ classic essay “In Search of Progressivism“)) and originalism, a small “family” of theories of constitutional interpretation (and construction), seems inapt. And it also worth pointing out that today those who tend to hold racially conservative, anti-immigrant views combined with a white nationalism – the views Garnett points out as a problematic past for liberalism — are a wing of the GOP as currently constituted.

Green’s blog post picks up on what one would think to be a straightforward point: that originalism is both an academic theory and an integral component of the conservative movement. Green writes:

one fascinating side comment that I thought deserved unpacking. After referring to Attorney General Meese’s July 9, 1985 speech as the point at which, TerBeek says, “self-conscious originalism [was] unveiled as a theory/movement,” TerBeek links to a paper by Stephen Teles on the history of Reagan’s Justice Department and notes that “the two strands are nearly impossible to separate.”

How does one distinguish a theory from a movement? Philosophers’ distinction between world-to-mind and mind-to-world directions of fit can help here.  . . . There is a difference, that is, between originalism failing to capture the imagination of legal elites–the failure of the movement–and originalism failing to capture the actual Constitution–the failure of the theory. If the theory fails (for instance, if the theory fails to match what Madison thought, and the theory also makes Madison’s thinking critical, or if the theory blurs sense and reference, or whatever), then the theory can be revised to match the reality in order to survive as a viable theory. The point is for the theory to match reality. Not so for political movements: if it turns out that the movement has not produced its intended effect, the movement cannot simply aim at something else and then declare itself a success; the whole point is to get the world to be a certain way.

Setting aside the salient fact that none of these three commentators dispute my empirics pointing toward a rather tight link between originalism and constitutional conservatives’ reaction to Brown, what one see here is distressingly common when one engages academic originalist theorists. Originalists do not seriously engage their own history but retreat into Frege or Grice or corpus linguistics or another idiosyncratic theory of originalism, and, perhaps most remarkably, now argue for originalism as a potentially replicable type of social science (or, like Garnett, attempt a “both-sides” critique).

But the idea that originalism the academic theory can be strictly divorced from its historical roots and political valence strains credulity in light of the evidence. As scholars like TelesKerschAmanda Hollis-BruskyJonathan GienappSaul Cornell, and Logan Sawyer (and a short essay by myself) have begun to show, originalism can escape neither its past nor its present. This scholarship has begun to demonstrate that originalism’s intellectual history appears deeply rooted in segregation; originalism shed its segregationist past as elite opinion and racial mores changed; originalism was developed over a number of years largely by conservative scholars who needed a compelling narrative to undermine Warren and Burger Court precedents and combat “non-interpretivism” and CLS in the legal academy; self-conscious originalism (contrary to the story originalists tell) was developed in the Reagan DOJ; the move to public meaning originalism was due to the ideological entrepreneurship of Justice Scalia and his former clerks who joined the legal academy; the “new originalism” was developed to justify the Rehnquist Court’s jurisprudence and encourage further jurisprudential developments by the Roberts Court (or chastise the justices when they disappointed); that originalism and the Federalist Society, inextricably intertwined, are an alternative knowledge structure from the liberal legal academy to provide intellectual ballast and support for conservative justices; that judges who are members of the Federalist Society are more conservative than non-member GOP nominees; and that one of the co-founders of Georgetown’s originalism “boot camp” and a prominent libertarian public intellectual, Randy Barnett, promotes his popularized work on Mark Levin’s talk radio show, and the other, Larry Solum, testified on behalf of originalism (and implicitly Neil Gorsuch) at the latter’s hearings.

To be clear, this is not to say that originalism as a serious academic inquiry is impossible. But originalists — besides largely ignoring the political valence of the theory as practiced and the conservative/libertarian intellectual support structure — seem reluctant to engage with historians’ and political scientists’ critiques of originalism. After years of being buffeted by academic historians, the linguistic turn was developed by Solum in order to avoid these critiques (though it is not clear that all originalists share Solum’s enthusiasm for this approach). Corpus linguistics, as used by originalists, appears to be another way to avoid historical critique at the same invoking the prestige of “big data” and putative rigorous empiricism — all the while ignoring the fundamental problem with originalism: the probable existence of multiple “original public meanings.”

The unproductive response to this evidence is to dismiss originalism as political hackery. It is not that. (Another irony in all this: historians and political scientists have taken originalism far more seriously as an idea than many liberal legal scholars). Originalism is better understood as providing the constitutional vocabulary for movement conservatism much the same way legal realism provided intellectual support for New Deal-era legal liberalism. But that also means originalism is inescapably part of the political terrain. However, originalists are now setting forth the intellectual architecture to claim that originalism is something like a replicable social science complete with a methodology. Thus — and this has long been its implicit claim — originalism is objective and any other theoretical construct is, by definition, constitutionally deviant. This is a bold, even audacious, claim. But it is one that needs to be debated and dissected rather than flippantly dismissed. Originalism has shown itself to be a powerful idea worthy of respect as a theory/movement. Originalists, at the same time, might do better to avoid the apolitical pretense that marks so much of the scholarship (and even the claims of more politicized actors like Levin). The final irony is this: originalism cannot achieve its desired hegemony unless and until its advocates engage with its critics rather than continually moving the proverbial goal posts. There still seems to be precious little evidence of that.

The Transition to Self-Conscious Originalism, 1977-1985

Cross-Posted at The Faculty Lounge

On December 6, 1984, then-Judge Robert Bork gave a speech to the American Enterprise Institute (AEI) calling on conservatives to combat the theory emanating from the (liberal) legal academy. “Now we need theory,” Bork stated, “theory that relates the framers’ values to today’s world . . . It is necessary to establish the proposition that the framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”

This seems curious in light of the fact that originalists, in telling their own intellectual history, point to Robert Bork’s 1971 Indiana Law Journal article as proto-originalism and Rauol Berger’s 1977 Government by Judiciary as the theoretical point of congealment around original intent orignalism, the pre-cursor to original public meaning originalism. If indeed constitutional conservatives had homed in on Berger, original intent, and originalism, why would Bork be calling for more “theory” on this very point seven years after Berger’s book was published?

This answer is straightforward but has been overlooked: constitutional conservatives did not immediately congeal around Berger’s formulation and begin to call themselves “originalists.” In addition to the anachronism of imputing labels and motives to historical actors they would have not have recognized or accepted, it is also another data point that political scientists, historians, and legal academics have ceded this important terrain to originalists. Furthermore, it is also a small window into how ideas gain traction. In short, while Berger’s book was important, digging a bit deeper shows that original intent originalism was not inevitable, but one of a few existing narrative frames for constitutional conservatives before 1985 (and perhaps even after).

(more…)

Was Originalism Born in Sin?

Cross-Posted at The Faculty Lounge

The standard account of the origins of originalism, especially those set forth in the law reviews, is that Robert Bork’s 1971 Indiana Law Journal article building on neutral principles was proto-originalism, the beginnings of what we now know as original public meaning originalism. (Political scientists appear to have accepted this narrative). This account is not confined to academic settings—National Review’s Matthew Franck translated Bork’s article for a later generation of conservatives in an article titled, “The Original Originalist.” But the story appears to be more complex than generally supposed. While Bork invoked “framer’s intent” and privileged reliance on “text and history,” these analytical constructs had already taken hold on the Right as a way to critique Brown and as a shorthand to attack Warren Court “sociological” jurisprudence.

“When the constitutional materials,” Bork wrote in his canonical article, “do not clearly specify the values to be preferred, there is no principled way to prefer any claimed human values to the other. The judge must stick close to text and history, and their fair implications, and not construct new rights.” This purportedly set forth “the core originalist proposition.” (See Jonathan O’Neill’s widely cited history of originalism).

Bork also spoke of the “framer’s intent”; what “the men who put the amendment in the Constitution intended”; that “Value choices are attributed to the Founding Fathers, not to the Court”; judges must accept a legislative choice “unless it runs clearly contrary to a choice made in the framing of the Constitution”; averred judges cannot put into place what the “framers omitted”; and he highlighted that the “principle of one man, one vote . . . runs counter to the text of the fourteenth amendment [sic], the history surrounding its adoption and ratification, and the political practice of Americans from colonial times up to the day the Court invented the new formula.”

Importantly (and a point we will return to below), while Bork admitted, “The Court cannot conceivably know how these long-dead [Fourteenth Amendment framers] would have resolved [modern-era equal protection claims] had they considered, debated and voted on each of them,” he argued that Brown could be saved by fashioning “a purely juridical rule” (but not by “consideration of psychological test results”): that the framers of the Fourteenth Amendment “intended to enforce a core idea of black equality against governmental discrimination.”

Bork, in other words, was invoking ideas and concepts that would form the theoretical template of self-conscious originalism unveiled as a theory/movement—the two strands are nearly impossible to separate—in Reagan Attorney General Edwin Meese’s July 9, 1985 speech to the ABA.

But Bork’s language, though academic in tone, would have rung familiar to conservative ears. In 1960, Senator Barry Goldwater’s ghost-written The Conscience of a Conservative talked about constitutional rights claims in a similar manner. “For the federal constitution,” Goldwater intoned, “does not require the States to maintain racially mixed schools.” Through L. Brent Bozell, a National Review editor and de facto author of this popular political tract, Goldwater sought to demonstrate this with repeated invocations of the “intentions of the founding fathers” and the “intentions of the Fourteenth Amendment’s authors.” Bork, who served as an academic adviser, along with Milton Friedman, to the Goldwater campaign almost certainly would have been familiar with this line of reasoning.

Building on Conscience, Bozell set out to demonstrate to NR-style conservatives the historical mistake the Court made in Brown in The Warren Revolution (1966). A relatively quiet polemic, The Warren Revolution’s introduction is sophisticated and at times scholarly in tone. Bozell’s thesis was straightforward: until 1954, the year Brown was handed down, the “fluid” provisions of the Constitution, such as the Fourteenth Amendment’s equal protection clause, had been decided on the basis of interbranch dialogue. No one department of government dictated the meaning of these open-ended provisions; instead, through “organic processes” constitutional politics were settled collectively. (Impressively, the idea of interbranch dialogue in constructing constitutional meaning prefigures well-known legal scholarship from the 1990s).

However, the Warren Court, “with the encouragement of the country’s intellectual establishment,” had instituted a form of judicial supremacy. Brown was the epitome of this troubling trend. Prior to 1954, the “race problem” was, as “the original framers in effect decided,” left to be solved through interbranch coordination. No more. The Brown decision, relying on “psychological and sociological treatises” which were mere “opinion rather than fact” ignored “the views of the Constitution’s framers.” Mocking the Court’s reasoning—the Fourteenth Amendment’s framers “after all, had not read Freud”—Bozell reasoned that, “in 1954, thanks to the sociologists and the psychologists” the Court had taken upon itself write a “concept” of equality “into the Constitution.” Fond of italics, Bozell summed up his argument thusly: “The States that ratified the Fourteenth Amendment, equally with the Congress that proposed it, had no intention of outlawing separate schools” (all italics are Bozell’s).

One year later, at Thurgood Marshall’s confirmation hearing, North Carolina Senator Sam Ervin, a supporter of segregation and Jim Crow, engaged in a lengthy colloquy with the nominee that focused on the need “to ascertain and give effect to the intent of the framers of the Constitution.” Ervin and other conservative Southern Democrats would again and again refer to the framers and their intent, but as Laura Kalman demonstrates in her must-read new history, neither Ervin nor South Carolina Senator Strom Thurmond directly mentioned Brown.

Nevertheless, Thurmond repeatedly asked Marshall for his thoughts on the “original Constitution” (this was his most frequently used phrasing), the “original understanding,” the Constitution as “originally framed,” and the “original intent.” Indeed, Thurmond repeatedly quoted John Bingham to ask if this famous framer’s intent was relevant to interpreting “the scope of the equal protection clause as originally understood and intended by the framers in regard to the right to vote . . . enter desegregated schools, or engage in miscegenation?”

(As a point of comparison, these proto-originalist framings do not seem to appear in the confirmation hearings of Justices White, Stewart, Whittaker, Brennan, or Harlan; though Goldberg’s 1962 hearings contain numerous reference to “original intent” or the “framers intent” and Brennan was asked by the virulently racist Mississippi Senator James O. Eastland “whether current theories of psychology and sociology” change the meaning of the Constitution. (In 1955, Eastland, as historian Michelle Nickerson notes, “sponsored a resolution asking for an investigation of the ‘alleged scientific authorities upon which the Supreme Court relied’ in the Brown decision”)).

What appears to set Bork’s 1971 theoretical template apart, then, is not concepts, but the result: Bork defended Brown based on a “purely juridical rule.” (Though he was quick to add “that, cases of race discrimination aside, it is always a mistake for the Court to try and construct substantive individual rights under the due process or the equal protection clause”). By the time Bork delivered his lecture in 1971, racial mores were shifting and Brown‘s status as part of the canon had begun to solidy. In addition to Thurmond’s refusal to criticize the case at Marshall’s hearings, in 1968 GOP candidate Richard Nixon affirmed his agreement with Brown.

Of course, the concepts of original intent (meaning), text, and history have been part of constitutional law and our shared constitutional grammar since the days of the Marshall Court. And only so much can be said in a blog post. But for too long scholars have ceded the intellectual history of originalism to originalists (Gienapp/Barnett is key here).  (Originalism is now hegemonic on the Right–it has conflated with constitutional conservatism, and it defines any deviation from the original public meaning as a deviation of from the Constitution itself. It is not only a powerful narrative, it is a powerful idea. As such, its intellectual history is important.

If Bork, a creature of postwar movement conservatism, and the theoretical tools he developed as proto-originalism, were (re)developed to challenge Brown — both a testable proposition and one worth diving into — this is an intellectual lineage, originalists must grapple with.

Is Justice Alito a Crit (or Just a Movement Conservative)?

Cross-Posted at The Faculty Lounge

Given the larger current political environment, it is perhaps understandable a rather remarkable speech Justice Alito gave at the Claremont Institute in early February received relatively little media attention (Mark Joseph Stern excepted). In addition to setting forth a robust constitutional conservatism—not, notably, couched in the narrative of originalism–Alito also explicitly advocated for the larger conservative political agenda, in the process invoking decades-old resentments and through lines in postwar conservatism. This was not a Scalian speech arguing for originalism, but more in the spirit of William F. Buckley, one of Alito’s intellectual heroes–Alito’s 1985 DOJ application, declared, “I am and always have been a conservative” and that the “greatest influences on my views” were Buckley and Goldwater. While the critical legal studies movement is rightly associated with the Left, Alito appears to be the mirror image of a still-hypothetical Leftist crit justice (Douglas was the closest, Brennan’s story is more complex). It is difficult to read the Claremont speech and think otherwise. Alito is not only hinting at where he sees the Court moving with five conservative votes now, but how the conservative movement, from NR-style “fusionism,” Goldwater, the New Right, to the Federalist Society ecosystem, all shaped his worldview. This is a speech worth paying attention to.

The first substantive aspect of the speech touches on the regulatory state: “federal law,” Alito states, “is made in a way that is never mentioned in the Constitution. It is promulgated by unelected executive branch officials in the form of federal regulations.” The inexorable “result has been a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”

Alito is of the same mind as the House GOP which, one month prior to Alito’s speech, passed a bill(s) repealing Chevron deference because, as House Judiciary Chairman Bob Goodlatte stated, regulations were “overly burdensome” and holding back economic growth. Not coincidentally, Alito’s Claremont speech bemoaned the “enormous increase in regulations that we have experienced with all of the attendant effects on our economy.”

Alito had a ready-made explanation for the why regulations have been, necessarily, a drag on our economy.

Now, how did this happen? And again, I’m going to go over ground that was covered before. To make a long story short, toward the end of the 19th century and the beginning of the 20th century, the progressives of the day came to believe that our 18th century Constitution—our horse-and-buggy Constitution, as they sometimes called it—was outmoded. Woodrow Wilson—our only PhD President, by the way—is a picture of this thinking.

Now, just as an aside, I think it is interesting that of all the presidents, the one who best understood our constitution, who got to the real core of its meaning, was the one with the least formal education—and that, of course, was Abraham Lincoln. And Wilson, the president with the most formal education, was the most openly hostile.

This is of course in line with the scholarship of George Mason’s David Bernstein and prominent originalist Randy Barnett. Less happily, it is also the story told by Charles Murray and Glenn Beck.  Equally salient, though, is that Alito highlights a persistent trope of post-war conservatism–downplaying “expertise” and highlighting “common sense.” And after averring he is neither a “scientist” nor an “engineer,” a well-worn conservative talking point, Alito invokes standard-issue climate change skepticism:

“Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.”

President Trump’s new EPA chief, Scott Pruitt, toes this same science-skeptical rhetorical line. (Historians’ accounts of conservatives, especially religious conservatives, suspicion and attacks on expertise are exemplified by Jason StahlMatthew Avery SuttonMichelle NickersonMolly Worthen, and the forthcoming book by political scientists Eric Oliver and Thomas Wood).

This would all be remarkable enough. But Alito then weighs in on the “culture wars,” criticizing the Court’s handling of Fisher v. Texas. There “is an obsession,” Alito laments, “with putting people into racial categories” by those who defend affirmative action. And after briefly decrying the Court’s refusal to protect religious freedom (of Christians), Alito moves on to campus speech issues and the “university vanguard.” This attack is in line with a long tradition on the Right; e.g., Buckley’s God and Man at Yale, Dinesh D’Souza’s Illiberal Education, (recent anti-Trump liberal darling) Charlie Sykes’ Profscam, and Ben Shapiro’s Brainwashed.

And in connecting free speech issues with criticism of the “media elite,” Alito echoes a conservative truism dating back at least to Goldwater’s 1964 presidential campaign, at the same time working in a defense of Citizens United:

Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans. 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.

Finally, and this is perhaps the most remarkable point of the speech, Alito engages, without naming names, Mark Tushnet’s (ironically, a prominent crit himself) Balkinization post regarding the culture wars:

Here are the words of a professor from Harvard Law School, in May of last year, proclaiming, maybe prematurely, that the left had won the culture wars—the professor had the following advice. “My own judgment is that taking a hard line—you lost, live with it—is better than trying to accommodate the losers. Trying to be nice to the losers didn’t work well after the Civil War, and taking a hard line seemed to work decently well in Germany and Japan after 1945.

So, in other words, we have Nazis and former slaveowners, we have people who cling to traditional moral beliefs, same difference. They are losers in the war and they just have to accept it.

That Alito is deeply conservative is not the interesting point here. Nor is my aim to raise the hackles of (certain) liberals (especially those who have created a hagiography culture around Justice Ginsburg–the silly “Notorious RBG” meme which has perhaps encouraged some of her more impolitic remarks). More interesting is that judicial politics in 2017 allows a justice to explicitly advocate in a public speech not merely the judicial agenda of the conservative legal elite (who bided Trump’s oddities in exchange for a Supreme Court seat) but the larger conservative political agenda. Perhaps this is simply the next logical step after Scalia’s ideological entrepreneurism on behalf of originalism. Whatever else, it is telling of current political moment.

One of the originalist talking points during the Gorsuch nomination was that liberals should take comfort that Gorsuch is not a conservative living constitutionalist who will simply rule in the manner of a movement conservative. What they failed to mention is that there already is one on the Court.