Monday, September 21, 2009

What’s really behind “originalism”

That’s really gonna bring ‘em in today, Spot.

Of course it will, grasshopper; you underestimate Spot’s readers.

Yale Law School is having a conference in October to consider the question:

What should the Constitution look like in the year 2020 and how should it be interpreted?

For a while now, excerpts of some of the presentations intended for the conference have been published at Balkinization, the blog started by Jack Balkin, a constitutional law professor at Yale. Some of these recent posts are very interesting and quite accessible. Here are a couple of bits from a post by Jamal Greene (a law professor at Columbia Law School)  this weekend that Spot especially liked:

Numerous planks of the Reaganite conservative legal agenda may be stated in arguably originalist terms: for example, opposition to abortion rights, restrictions on school prayer, gun control, private litigation against government officials, and procedural rights for criminal defendants. But if the goal was to use originalism to achieve this or some other set of originalist-grounded doctrinal objectives, it has not nearly been realized. There is District of Columbia v. Heller, of course, and state sovereign immunity has been beefed up considerably, but one is hard-pressed to identify any other significant doctrinal developments over the last 25 years that are both originalist (other than coincidentally) and consistent with traditionally conservative political commitments.

The limited jurisprudential utility of a resolute commitment to originalism makes perfect sense. No serious legal professional can be originalist in the way in which its promoters in the public sphere usually mean it: that constitutional interpretation will be dictated by the expectations of the ratifying generation. Most American women like their equality just fine, thank you. And so originalists, to be taken seriously, must water the doctrine down so as not too much to unsettle the vast architecture of settled law that is inconsistent with original understandings. In light of broad, unanticipated, and well-calcified expansions in the administrative state, in congressional and executive power, and in individual rights, there is surprisingly little of relevance for “faint-hearted” originalists to pick at. Moreover, and inevitably, many of today’s conservatives, including on the Court itself, like their executive power just fine, thank you. They have little taste for doctrinaire originalism. For these reasons, I have come to the view that the window for originalism-motivated constitutional change is closed for the foreseeable future, with relatively little to show for itself by way of doctrine.

But here is where “originalism” has been more important:

As I said, however, affecting constitutional doctrine was not the foremost goal of the originalism movement. Rather, originalism’s brilliance lies in its capacity to validate conservative politics. Originalism is at once cousin and heir to meaningless terms like strict constructionism and judicial restraint, the crucial difference being that, within professional discourse, originalism is not meaningless at all. Rather, a serious debate can be had, and has been had, about what originalism entails, when it should and should not be used, and what its limitations might be. And thus the fight was joined. The originalism movement had champions both within the world of self-respecting legal professionals—most prominently, Judge Bork and Justice Scalia—as well as outside of it—including demagogues like Rush Limbaugh and Glenn Beck. Within non-professional discourse, the originalism movement has helped give a populist frame to elitist conservative politics. It has done so both by highlighting the countermajoritarian difficulty and by creating synergies between the rhetoric of legal advocacy and a particularly resonant American cultural narrative of restoration. If you’ve been persuaded that you “want your country back,” then those espousing originalism within judicial politics are selling what you’re buying. By helping to marry conservative politics to the professed meaning of the Constitution, originalism has been a powerful weapon in the right’s arsenal. Additional effects on doctrine then come not by way of originalist opinions but indirectly through what Jack Balkin and Sandy Levinson have called partisan entrenchment: successful conservative politicians have availed themselves of their right to stock the bench with like-minded judges.

Professor Jamal uses bigger words and longer paragraphs than you do, Spot.

Yes, grasshopper, but what did he say?

Well, he said that the real success of “originalism” was not in the courtroom, but rather in creating a conservative frame for Rush Limbaugh and Glenn Beck to use to dress up their demagoguery. And since we know that conservatives like to reject modern thinking in favor of ancient tracts, it works.

TPaw by Avidor That’s right, grasshopper. Well done. Now, let’s bring this a little closer to home. Well, it would be home if he was ever here! Spot is referring, of course, to “Tenther” Pawlenty and his argument that health care reform in the United States would violate the Tenth Amendment of the Constitution, an argument that has been thoroughly debunked as a constitutional law matter.

But TentherPaw knows that the argument is a convenient short-hand, a code, for the other hot buttons that Professor Jamal refers to: opposition to abortion rights, restrictions on school prayer, gun control, private litigation against government officials, and procedural rights for criminal defendants. And don’t forget civil rights, and especially gay rights.

The seemingly avuncular TentherPaw is wearing his gang colors for the southern Republican base and giving their gang signs at every turn.

Graphic by Ken Avidor

No comments: