//  6/14/18  //  In-Depth Analysis

By Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University

To understand the exalted views of presidential power associated with the Trump administration one must appreciate the role that originalism and its theory of the unitary executive plays in contemporary right wing thought and culture.  According to Trump’s lawyers, the President “possesses the indisputable authority to direct that any executive branch investigation be open or closed because the Constitution provides for a unitary executive with all executive power resting with the President.  As is true for many originalist claims about the past, the unitary executive rests on  a series of distortions, simplifications, and a profoundly ahistorical reading of  the Constitution.  Although originalists invoke the authority of history, their method is profoundly ahistorical.  This failure to grasp the nature of history is evident in a recent posting on the Originalism Blog by Professor Mike Ramsey expressing consternation that critics of Trump’s originalist justification would turn to history and text as the foundation of their critique.  Most originalists share Ramsey’s confused view of anti-originalism.  According to Ramsey opponents of originalism share three common views:

(1) Originalism is a radical cultish ideology that is inconsistent with ordinary approaches to legal interpretation.

(2) Originalism is impossible because we can’t know for sure what the framers thought about anything or what words meant historically, and in any event only trained historians can fully understand the past.

(3) Originalism is irrelevant because we shouldn’t be bound by the framers’ design.

First, it is important to point out that critics of originalism do not view it as cultish, but ideological.  This is an important distinction.  As many critics of have noted, originalism functions as both the method and ideological foundation for much contemporary right-wing constitutionalism. Moreover, the originalist movement has benefited from a vast “originalism industrial complex” that has invested heavily in this ideology and created a remarkable inter-locking set of right wing think tanks and anti-public interest law firms.  Originalism now boasts three academic centers in the legal academy, one hosting a yearly “boot camp” to train the ideological warriors of the future.  The Federalist Society has adopted originalism as its judicial philosophy and industriously works to nurture, network, and promote the careers of originalists old and young. To be sure there are a few left leaning originalists, but these small number of idiosyncratic originalists have had little impact on litigation or public policy.

Historical arguments are hardly unique to originalism.  Such arguments are widely recognized by non-originalists as one of the many modalities typically employed in modern constitutional interpretation. Critics of originalism do not ignore Founding era thought, but they insist that constitutional ideas were not fixed in 1788. (The entire notion of fixation, a claim shared by many originalists, itself rests on a serious misreading of the philosophy of language and linguistics, a point that originalist critics have made on multiple occasions.)  Rather than embrace the stilted version of history espoused by originalists, non-originalists share a view common among the leading constitutional thinkers of the Founding era.  Constitutional culture in the Founding was decidedly not originalist in the sense in which this term is typically used in modern legal debate.  History, was indisputably important to many in the Founding era and historical argument has always been important in American constitutional law in the centuries that have followed, but it is important to distinguish genuinely historical approaches to the past with originalism.

Ramsey and other leading originalists, including Lawrence Solum, Randy Barnett, Michael Rappaport, and John McGinnis have all consistently misrepresented the historical critique of originalism.  The point of the historical critique of originalism is not that we are unable to recover historical meaning.  One need not be a PhD. to comprehend the relevant historical methodology necessary to understand Founding-era constitutional culture and debate. There are many outstanding legal academics who do high quality historical work who do not have professional training in history.  The problem is that few originalists fall into this category.

One consistent problem with originalist approaches to the past is their simplistic model of language.  As Jack Rakove and other historians have pointed out, there is a mechanistic quality to originalist inquiry.  Thus, when originalist Lawrence Solum talks about recovering the linguistic facts of the Founding era he unwittingly trumpets the flat one dimensional quality of originalist approaches to language.  Although often he invokes linguistics, Solum’s approach ignores the fields of linguistics most relevant to the recovery of past meaning: linguistic anthropology and socio-linguistics.  Reading Solum one might think that the various speeches given in the individual state ratification conventions in 1788 were the production of automatons who had searched linguistic corpora and spit out their linguistic facts so that modern scholars could collect them and dump them into buckets for analysis.  People, not dictionaries, participated in the ratification debates. To faithfully understand those speeches we must recover the lost language games of eighteenth century speakers and recognize that speakers and listeners were part of a complex drama. The dramatic metaphor is especially apt given that the audiences for these speeches were often part of different speech communities who were perfectly capable of interpreting texts in ways that departed from their authors intended meanings.  No complex literate society ever studied by anthropologists or modern historians fits the simplistic model of language and communication proffered by Solum and other originalists. 

A few originalists, most notably, William Baude and Stephen Sachs have argued that the most relevant constitutional meaning is not the ordinary linguistic meaning sought by Solum and many other champions of the new origialism, but the legal meaning accorded to texts by judges and lawyers.  Although this modification is an important improvement over the new originalism’s misguided focus on ordinary meaning, the move from originalism 2.0 to 2.5 suggested by Baude and Sachs still rests on a dubious assumption that legal culture in the Founding was marked by consensus.  There was no agreement, even among lawyers, on which background assumptions and interpretive rules  ought to govern legal interpretation in post-Revolutionary America.  Indeed, even if we limit out discussion to the Federalist elite in 1788 we are forced to confront the fact that Madison and Hamilton did not agree on how to interpret the Constitution. 

Naiveté about language also helps explain most originalists’ confusion over the different authorial voices anti-originalist scholars use when writing editorials or amicus briefs.  Originalist “scholarship” is often indistinguishable from an amicus brief.  Given this fact one can appreciate why it would seem shocking when anti-originalists employ originalist tropes strategically when trying to persuade the public or judges.  The job of an advocate is after all, advocacy. It is surely ironic that originalist lawyers have lost sight of this simple fact, something that was well understood by lawyers and non-lawyers alike in the Founding era.  Exposing bad originalism with better arguments inflected with originalist rhetoric is neither inconsistent nor hypocritical, it just good lawyering.

Ramsey’s third point also requires some clarification.  Historians generally believe that on many of the most important issues of concern to modern courts there were multiple plausible constructions of the Constitution in 1788 and afterward.  Obviously there was not much conflict or confusion over how many Senators each state might claim under the Constitution or the age requirement for the President.  The same was not true for terms such as federalism, necessary and proper, or freedom of the press.  Non-originalists believe that an inquiry into Founding era understandings of a particular provision of the Constitution is often a good starting point for legal inquiry, but it is seldom the end of the story.  This was certainly true of James Madison’s mature view of constitutional interpretation when he championed the constitutionality of the Second Bank decades after he had opposed Hamilton’s First Bank in the 1790s. Madison recognized that American constitutionalism was not fixed, but could evolve in much the same way that the common law had in England.

Until originalists grasp the basic outlines of the non-originalist critique of originalism little progress is likely to be made in this area of constitutional debate.  A number of historians have raised serious objections to originalist practices and theory but these challenges have never been satisfactorily answered.  Originalism presents a type of faux interdisciplinary inquiry. It invokes the authority of history, but it does not meet the scholarly standards of evidence and argumentation set by serious historians.  The time has surely arrived for a more rigorous and constructive engagement between originalism and serious history. For such an engagement to take place originalists need to get the historical critique of originalism right.


Reinvigorating Defensive Crouch Liberal Constitutionalism Part 2: Will Clarence Thomas Save Abortion Rights?

7/19/18  //  Commentary

Would Justice Thomas really strike down federal legislation restricting abortion? We may soon find out.

Michael C. Dorf

Cornell Law School

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7/19/18  //  Commentary

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Aaron Tang

UC Davis School of Law

Arguments About Nationwide Injunctions

7/16/18  //  In-Depth Analysis

By Zachary D. Clopton: The question whether a nationwide injunction should issue is case-specific and policy-inflected.

Take Care