Originalism Is Being Tried Today

Richard Primus has graciously clarified his claim about originalism. It is not that many originalists believe it has never been tried in simple sense. Instead, “in the context of my initial post, ‘never-been-tried’ is a shorthand for something like ‘not yet conducted with sufficient persistence and proficiency so as to let its record of conduct stand as a fair test of what the theory can deliver if carried into practice properly.’ ”

I don’t entirely agree with this narrower claim and I don’t think most other originalists would either, but it is a more interesting question. There are two parts to my demurral. Richard focuses on testing the question of whether originalism constrains decision makers and creating stability. Constraint and stability are not for me the chief advantages of originalism. Nor are they for such varied theorists as Randy Barnett, Keith Whittington, or Jack Balkin. And I am not sure the advantages that these theorists emphasize are reducible to an empirical test through case law. Mike Rappaport and I, for instance, have suggested that the original meaning of the Constitution is likely beneficent by other kinds of arguments. In short, there other justifications for originalism and other ways of making these justifications plausible than empirical review of cases . Originalism can be evaluated in other ways.

A more direct disagreement is that I think there has been enough practice of originalists to suggest, although not prove, that originalism does lead to substantial, albeit not perfect, constraint. Let me set aside the more distant past which was the subject of a prior post. In recent times Antonin Scalia and Clarence Thomas were the most consistent adherents of originalism and not coincidentally they agreed in about ninety percent of cases.

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Once and Future Originalism

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

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Why Libertarians Should be Originalists

Richard Primus has argued that it would not make sense for a libertarian to be an originalist. But his arguments impose an unreasonably high standard for a libertarian’s choice of interpretive method, and reflect, like another recent post, a misunderstanding of originalism.

First, he says that the Constitution does not entrench libertarian principles as such.  True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian  who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism.  Instead, the question should be whether an originalist view would move constitutional law today toward  more libertarian results than plausible competing interpretive theories. And here the answer is yes.

First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers.

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Primus on the Inaccuracy of Madison’s Notes

In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate.  In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary. Primus acknowledges that original public meaning originalists should not be much affected by the inaccuracy, because Madison’s Notes are not very relevant to their theory, which focuses on word meanings.  But he still believes originalists are likely to be upset: Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask…

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