Contra Historicist Originalism

In a recent Deseret Magazine essay, Notre Dame Law School professor Stephanie Barclay rebuts the trite and tiresome progressive objection that the constitutional interpretive methodology of originalism, as typically formulated, serves as a convenient fig leaf for judges seeking to advance a substantive right-wing political agenda. Barclay quotes Aziz Huq, a professor at my law school alma mater, the University of Chicago (and the furthest thing from a conservative, in his own right): “The political discourse of originalism is closely aligned with the policy preferences of the Republican Party that has promoted judges who happen to take this perspective.”

If the decades-long, post-Federalist Society founding (1982) doctrinal development of originalist theory has merely been an elaborate ruse all along intended to bamboozle gullible dupes into complicity in conservative politics, then the jury is in and that ruse has dramatically failed. Hold aside for a moment the epic post-1982, but pre-2017, judicial letdowns of those who did not necessarily claim, at the times of their Supreme Court nominations, to actually be originalists: Sandra Day O’Connor, Anthony Kennedy, David Souter, John Roberts, and so forth. Even cabining our surveying of the landscape to the purported “well-oiled judicial nominations machine” of the Trump presidency, it is easily shown that those seeking to advance a conservative political agenda under the auspices of originalist jurisprudence have failed.

Justice Neil Gorsuch, who replaced the late Justice Antonin Scalia, invoked his own idiosyncratic views of “textualism” (for all intents and purposes, interchangeable with “originalism”) in Bostock v. Clayton County to read sexual orientation and transgenderism into the fabric of the nation’s civil rights statutory edifice—an obviously and profoundly non-conservative substantive result for which we are still reaping new consequences. Gorsuch had done much the same in 2018, though comparably few noticed at the time, in his staunchly libertarian concurrence in the 5-4 criminal alien deportation case of Sessions v. Dimaya.

These moments of high Gorsuchian “principle” bring to mind other high-profile instances of positivist originalists who are feted with plaudits and “strange new respect” from the overwhelmingly liberal legal profession when they thump their chests and solemnly declare that historicist positivism requires them to rule against their putative “conservative interests.” Consider, for instance, Scalia’s joining the misbegotten majority opinion in the 1989 flag-burning case, Texas v. Johnson. Myriad other examples abound. There is something frankly bizarre about the happy-go-lucky exaltation of the “hey, at least we’re all textualists now!” camp, but its prevalence nonetheless in right-of-center legal circles reveals that Huq’s theory of nefarious conservative bamboozlers is sorely misplaced.

Consider also how Justices Brett Kavanaugh and Amy Coney Barrett, for their part, have consistently trod a middling and deeply cautious path since their respective Court nominations, including their actions on recent hot-button religious liberty and transgender cases. As South Texas College of Law Houston professor Josh Blackman recently noted at Newsweek, where I am opinion editor, Justices Clarence Thomas, Samuel Alito, and Gorsuch have gone so far as to question whether Kavanaugh and Barrett possess the “fortitude” to properly discharge their duties.

Regardless of how Kavanaugh and Barrett’s defenders may justify their recent actions, including appeals to ostensible “modesty,” the truth is that such trepidation is cold comfort to poor Barronelle Stutzman, who endured years of intense litigation only to see her deeply-held faith publicly humiliated by black-robed elites. It is similarly the conceit of “principled” right-of-center legal eagles, free to opine from their donor- and tuition-funded sinecures, that leads them to praise Kavanaugh and Barrett’s “humility” but ignore the real harms inflicted upon young girls in Gloucester County, Virginia, now forced to share intimate high school bathroom space with biological males as a result of the Court’s failure to intervene in Grimm. (Note that Gorsuch, intellectually consistent with his Bostock sophistry, joined Kavanaugh and Barrett in Grimm in not voting for certiorari.)

A perhaps likelier explanation for the long-term rise of originalism as it has been most frequently formulated, along the avowedly positivist lines of how it was espoused by Scalia and the late Judge Robert Bork, is that its adherents viewed—and continue to view—positivist originalism as an intrinsic end to be pursued unto itself. Those in this classically liberal school of thought have ordinarily viewed a commitment to legal historicism and the elevation of a values-neutral proceduralism as the highest legal goods a sound judicial statesmanship in our republican form of government might hope to secure. In political terms, we might recognize this as a variety of “right-liberalism”—a cousin of the very “David French-ism” of New York Post op-ed editor Sohrab Ahmari’s ire.

I suspect Barclay and I agree on much of this characterization so far—perhaps even all of it. But the issue with Barclay’s essay is that she stops short of recognizing the legitimacy—or even the existence, it seems—of competing sub-strands of originalist thought. There is no recognition of either libertarian originalist or progressive originalist thought as extant foils to positivist originalism, along the lines of how Arizona State University professor Ilan Wurman delineated the taxonomy in a 2014 National Affairs essay. Instead, all we get from Barclay is a highly oversimplified dichotomy of “originalism” tout court in one corner, and Harvard Law School professor Adrian Vermeule’s proposed jurisprudential alternative of “common good constitutionalism”—a “modern foil of originalism,” Barclay avers—in the other corner.

This is a false choice.

The Founders would have been befuddled by revisionist appeals to legal positivism, a largely 19th-century development. Consider, as Claremont Institute president Ryan P. Williams suggests, the wisdom of no less a Founding-era luminary than President George Washington, who argued in his First Inaugural Address that “the foundations of our national policy will be laid in the pure and immutable principles of private morality.” That is the essence—the telos—of the American Founding and the American constitutional order, rooted most clearly in the common good-oriented language of the Constitution’s Preamble, which enumerates the desired substantive political ends of “establish[ing] Justice” and “promot[ing] the general Welfare,” inter alia.

The upshot, as the James Wilson Institute’s Hadley Arkes and Garrett Snedeker, the Claremont Institute’s Matt Peterson, and I put in our March 2021 “A Better Originalism” manifesto, is that “moral truth is inseparable from legal interpretation” and the “Anglo-American legal order is inherently oriented toward human flourishing, justice, and the common good.” The notion that our legitimate legal inheritance from the Founders is something closely mirroring a historicist and amoral positivism that pays no heed to principles of objective morality or natural justice, as Scalia and Bork held and as Barclay seems to believe, is belied by so much as a cursory glance at the record evincing what those men—to say nothing of their English forebears at common law—actually believed.

Moral truth and originalism are inextricable from one another if one seeks a jurisprudence that is both faithful to our Anglo-American inheritance and worthy of the term “conservative,” as we argued in “A Better Originalism” and as Notre Dame Law School professor and James Wilson Institute trustee Gerry Bradley wrote in his masterful recent law review article, “Moral Truth and Constitutional Conservatism.” And it is fairly straightforward to operationalize this conservative, moralistic, justice-seeking jurisprudence using the preferred methodological framework and even nomenclature of modern originalist scholarship, as I put forth in my own recent law review article, “Common Good Originalism: Our Tradition and Our Path Forward.” This is where all the intellectual energy is right now in right-leaning jurisprudential circles. There is an intense hunger for something more than what the positivists and “strict constructionists” have offered. Fortunately, we do not need to look very far for guidance.

Professor Barclay deserves credit for rebutting some of the most common left-wing bromides about originalism. But her readers would have benefited from a more nuanced taxonomical breakdown of the various stands of right-of-center jurisprudence now on the menu.

Josh Hammer is Newsweek opinion editor, a research fellow at the Edmund Burke Foundation, a syndicated columnist, and a contributing editor of Anchoring Truths. Twitter: @josh_hammer.

Josh Hammer is a Contributing Editor at Anchoring Truths and 2021 James Wilson Fellow. He is opinion editor of Newsweek, a research fellow with the Edmund Burke Foundation, counsel and policy advisor for the Internet Accountability Project, and a syndicated columnist through Creators.
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