Marcus contends that originalism “offers the mere mirage of objectivity and therefore of constraint” and is a “fundamental[ly] futil[e]” enterprise. She quotes with approval the notion that “For most constitutional provisions, there is no ‘original meaning’ to be discovered.”
I have no quarrel with the proposition that there are many constitutional questions to which originalism cannot provide a clear answer. Nor, I think, do other originalists. But that is no reason to dismiss originalism when it can provide a clear answer. And on most of the hot-button questions of the past several decades (e.g., abortion), originalism clearly rejects the favored progressive position.
Originalists recognize the incompleteness of originalism as a judicial methodology, and they differ on important questions such as what level of certainty as to constitutional meaning is needed to decline to enforce a statute. I, for example, have defended a presumption of constitutionality, while many libertarians propose a presumption of unconstitutionality. There are also lots of methodological issues on which originalists hold various views. Marcus could fairly have cited this lack of consensus as a flaw in originalism.
It's worth including the precise language of Marcus's original argument that prompts these responses:
The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.
Whelan's response fails to engage with Marcus's original point. While Whelan concedes that there may be instances where originalism doesn't provide a clear answer, it is not clear how much of a concession this is. And, two sentences later, Whelan seems to limit the scope of his concession so that it does not cover "most of the hot-button questions of the past several decades." For these, Whelan claims, "originalism clearly rejects the favored progressive position."
In my not-so-distant prior career as a litigator, the word "clearly" is something I always searched for when I was preparing an opposition or reply to an opposing party's brief. This term tended to signal the most dubious claims. This is the case here. In a single sentence, Whelan waves aside libraries' worth of debate between legal scholars and historians over the original meaning of constitutional provisions at the heart of disputes over the last few decades. Whelan also fails to engage with the deeper point: history is a complex undertaking, and a thorough investigation into the original meaning of the Constitution may reveal that there is no clear original meaning. If this is the case, originalism does not seem appropriate to resolve a dispute where the Court must rule on a single meaning.
Marcus also critiques the methodology of corpus linguistics, in which lawyers and judges search databases of documents from a particular time period to determine how words and phrases were commonly used. Her broader point is that the methodology is an example of her overall argument: that uniform historical meaning is uncertain and potentially nonexistent. Whelan also fails to engage with this, focusing instead on Marcus's examples of how corpus linguistics being misapplied. He argues that this is an argument "for using corpus linguistics cautiously, not an argument against originalism." This ignores the larger point that corpus linguistics demonstrates originalism's indeterminacy. But to respond directly to Whelan's assertion, I've argued before that it's relevant to point out instances where corpus linguistics is misapplied. If this is a common mistake, then it risks a great deal of shoddy analysis under the guise of originalism--something that should raise more concern for someone like Whelan than he expresses in his response.
(This same point applies to theories of interpretation more generally as well, as I've begun to argue here, but I will leave that point aside since this post is already becoming too long, and because I'll be saying much more on this in a future article.)
Strategic Originalism
The last issue I want to address in this already lengthy post--and the issue that inspired me to write this post in the first place--is prompted by the remark that Ramsey includes after quoting Whelan's response to Marcus:
I agree with all of this, and I'd add that many center-left commentators and legal scholars are very willing to make originalist arguments when they perceive that the original meaning helps their preferred view (as it sometimes does).
Ramsey does not explain the implications of his remark, but he seems to be suggesting that those on the left are conceding the legitimacy of originalism as a theory of interpretation by resorting to originalism when it serves their desired political ends. This inference is dubious because originalist arguments may be made in a strategic manner to appeal to a conservative Court. Those making the arguments may not agree with their methodology, but such arguments may have a slightly better chance of getting the Court's attention than a straight up critique of the Court's interpretive methodology.
In the past I tended to think that progressive originalist commentary and scholarship was of little use and caused more harm than good to progressive policy objectives. Ramsey's point illustrates one of the main reasons I held this view: progressive scholarship employing originalist methodology could be characterized as legitimizing originalism. I did not agree with this inference, as I believe it is not only possible, but common, to assume certain conditions for the sake of argument and then to argue against a certain conclusion on those terms. But, as Ramsey's remark here demonstrates, this distinction is frequently overlooked for the purpose of achieving a "gotcha" argument against progressive scholars and commentators who also disapprove of originalism more broadly.
Moreover, I believed then (as I do now) that history and tradition is often skewed against progressive outcomes. Many of the Constitution's framers owned slaves. Women's rights were limited at the time of the Fourteenth Amendment's passage, and many legal regimes denied women the legal status and abilities held by men. Originalism may not provide clear answers on the meaning of vague and ambiguous constitutional provisions. In the face of this uncertainty, interpreters may give history and tradition an outsized role in constitutional interpretation. Indeed, the Court seems to have leaned into this approach in its last term, as I detail here. In cases involving the interests of women, racial minorities, and other groups who have historically been subjected to oppressive legal regimes, an approach grounded in history and tradition will tend toward negative outcomes for these groups. This isn't a fair playing field, and originalist suggestions that progressives simply must engage more at the level of historical debate are therefore unconvincing.
Despite all of this, my views today of the value of progressive originalist arguments and scholarship are now more nuanced than they once were. While it is easy for a scholar or commentator to take a stance on little more than principle, considering how commentary and scholarship may ultimately be employed in practice remains important. Broad theoretical arguments have their place: they may inform the public and politicians of the state of constitutional interpretation and, to the extent that things are unsatisfactory, provide arguments for reform.
But scholars and commentators shouldn't forget that there are attorneys who need to make arguments before the Court--a Court with a supermajority of justices who are either self-proclaimed originalists or who have at least signed onto opinions written in a purportedly originalist manner. These advocates before the Court don't have the luxury of high-level theoretical arguments. A claim that originalism is a flawed method will fail to move these justices. Instead, these advocates' best hope of success (admittedly, a very slim hope) is to argue on the justices' level. It is here that progressive originalist scholarship and commentary may be of use. A cottage industry of originalist scholars are at work parsing out the original meaning of constitutional provisions. Maintaining an ideological balance in these scholarly endeavors makes it less likely that the output of this area of legal academia will remain politically one-sided. While originalist scholarship that reveals outcomes that align with progressive policy goals may not end up convincing conservative justices, it at least lends additional support to advocates arguing before them.
Circling back to Ramsey's point about center-left commentators' and scholars' originalist arguments: these scholars may well disagree with originalism as an interpretive methodology but acknowledge the practical reality that those arguing before the Court need to makes arguments at the originalist level. Researching, writing, and commenting on historical evidence of original meaning that favors progressive outcomes is therefore not a concession that originalism is a good, or even legitimate, approach to interpretation. Instead, the work is motivated by a pragmatic acknowledgment of the realities of litigating before a conservative Supreme Court.
One may object and argue that I'm claiming that scholars are hacks. I seem to be assuming that conservative scholars will seek out conservative originalist conclusions, while progressive scholars will strive for liberal originalist conclusions. This seems to require an unrealistic amount of politically motivated academic dishonesty. Such an objective does not accurately characterize my views.
First, political bias in research outcomes will likely be unintentional in many instances. Many (though not all) legal scholars lack sufficient expertise as historians to engage in the rigorous and technical investigation necessary to accurately survey historical evidence. As a result, unconscious biases may color their analysis. These range from nonpartisan biases of applying modern legal frameworks or usages to the reading of historical texts. But they may also include interpreting a vague or ambiguous piece of evidence in a manner that ends up supporting a desired conclusion.
Second, journals themselves may encourage conclusions that align with particular political ends. Some law journals pride themselves on publishing conservative scholarship. Others are the opposite, encouraging submissions that align with progressive policy positions. As a scholar's investigation begins to uncover evidence that leans in a certain direction, that scholar's desire to be published in one of these journals, or to associate with a particular audience, may end up motivating the scholar to seek out more of the same evidence rather than taking a more balanced approach to the investigation.
Third, scholars who are directly motivated by their political goals may end up implementing these political preferences in a manner that does not involve intellectual dishonesty. A progressive professor, for example, may come to believe after some research that the original meaning of a constitutional provision leads to conservative outcomes. The professor may decline to continue that research or publish the results of that investigation in the interest of avoiding giving ammunition to political opponents. Such a strategy involves political motivation and may raise questions over intellectual honesty and selective publications, but it seems distinguishable from a scholar who ignores contrary evidence or makes false claims in support of a desired conclusion.
My opinion of progressive originalist scholarship and commentary is nuanced. While I have come around to acknowledging its importance for those arguing before the Court, I suspect that even accurate and exhaustively researched progressive originalist work makes little difference to the conservative justices and may be crowded out by shoddy work written and published by those lacking sufficient historical expertise. Additionally, remarks like Ramsey's suggest that this work may be coopted to support claims of progressive acceptance of originalist methodology. Despite all of this, strategic originalism has its place in progressive legal scholarship and advocacy. And while this work may not influence the justices presently on the Court, it may serve as a basis for changing Constitutional law in the decades to come.
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