Berman and Toh on the New and Old Originalism: Part II – The Old Originalism

(This three part post addresses the new article on Originalism by Berman and Toh. In my first post on this article, I argued that the New Originalism is not primarily concerned with theories of law. Here I move on to Berman and Toh’s discussion of the old originalism.)

Berman and Toh also claim that the old originalists were mainly concerned with theories of adjudication rather than theories of law. Berman and Toh assert that Bork, Meese and Scalia are all focused on constraining judges rather than about the law.

But this claim is also problematic. To begin, Berman and Toh admit that Raoul Berger – perhaps the oldest of the old originalists – had a theory of law. But Bork also (in the Tempting of America) argued that the Constitution was law (and therefore could only be changed by legal procedures). In fact, that might have been his principal argument.

Even Meese in a short speech to which Berman and Tod refer, founds his argument on the fact that the Constitution is law. It is true that he uses that as an argument for why judges are bound by that law, but the basis of his argument is that the Constitution is law.

In addition, old originalist Lino Graglia also has a theory of the Constitution as law, as Berman and Toh admit.

Thus, if Berger, Bork, and Graglia had a theory of law (and if Meese also founded his argument on the Constitution as law), then it is hard to argue that the old originalism did not base its argument on law.

Instead, many old originalists had both theories of law and adjudication. They believed the Constitution was law and they believed that meant that judges should follow the law.

Of course, the old originalists made their arguments in what might seem to be relatively unsophisticated ways to later originalists. The new originalists have built upon the old originalists and have become more academic and more academically sophisticated. So perhaps it is something of a stretch to say that Berger or Meese had a theory of law. But it is fair to say that they relied on – and clearly assumed – that the Constitution was law.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Kevin R. Hardwick says

    Mike–

    It seems to me that you are writing here primarily for people who are already well familiar with the conversation over originalism, at a fairly deep level. Nothing wrong with that–that’s the world in which most academics live. Most of us, most of the time, are speaking to a relatively narrow group of folks with whom we share a particular, focused and technical conversation. But it does narrow your audience.

    Let me give you an example of what I mean. You write: “Thus, if Berger, Bork, and Graglia had a theory of law (and if Meese also founded his argument on the Constitution as law), then it is hard to argue that the old originalism did not base its argument on law.” But read literally, with no assumed knowledge, this is a non-sequitor. After all, just because I have a theory of something does not mean that I must base all of my argument on that theory. I might, for example, argue that the Constitution is law, but that it is also does other things. Don Lutz in his discussion of constitutionalism, notes that among other things, a constitution creates a people. If I wish to argue about that–about what it means to create a people–I do not have to speak at all to the constitution as law. In that kind of argument, the fact that I have a theory of law is irrelevant to the argument I am making. Hence, I can easily imagine circumstances in which the claim you make above is false.

    I suspect that it actually, in context, makes a great deal of sense. But while you are well familiar with that context, I am not.

    All best,
    Kevin

  2. Mike Rappaport says

    You are right as a logical matter: just because you have a theory of something does not mean that you base your argument on it. But I think it is fair for the reader to infer that the latter claim is also being made.

  3. Kevin R. Hardwick says

    Mike–

    It is still the case that I am mostly on the outside of the conversation in which you are engaged–it is not that I don’t want to understand it, or to appreciate the positions you are articulating. But it is the case that I often find myself unable to discern with adequate confidence what is at stake in the conversation. I don’t mean this a criticism, since I think it is quite legitimate for you to be writing mostly for the others in the conversation. But on the other hand, it is at least possible you would like people like me to be able to follow the nuances–and if that is the case, it may be useful for you to know that I don’t think I am.

    Of course, it is also possible that I am just obtuse, so take all of this with a grain of salt.

    Well wishes,
    Kevin

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