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

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(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.