The Volokh Conspiracy
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McGinnis: The Empire Strikes Back Against Originalism
"All these criticisms [of originalism] are actually disputes about original meaning, not rejections of it."
John McGinnis wrote an essay for Law & Liberty, titled "The Empire Strikes Back Against Originalism." I encourage you to read it. John provides a thorough summary of how originalism stands today in our legal order, and how its critics are coming to grips with it. Much of the essay focuses on a recent New York Times Magazine article by Emily Bazelon. (James Phillips and I were quoted by Bazelon.) Here is an excerpt:
Bazelon is often caught in a time warp in her criticisms of originalism, as if we were still in the infancy of its revival without the benefit of mature scholarship responding to opponents' claims. She says that Brown v. Board is inconsistent with originalism without even addressing the scholarship, like Michael McConnell's, that argues that it is not. She suggests that originalism will necessarily require a wholesale repudiation of precedents that undergird the modern state without taking account of work like my own and Mike Rappaport's that identifies a role for precedent within originalist theory.
But the strongest evidence of the strength of originalism is that much of her criticism of the current Court comes from originalists or originalist methods. She quotes my colleague, the originalist Steven Calabresi criticizing an opinion of Justice Scalia's as getting history wrong. Similarly, she objects to Gorsuch's Gundy v. United States dissent, which cast doubt on the breadth of Congress' authority to delegate legislative power to the executive, by quoting work from two scholars at Michigan Law School who argue that the original Constitution did indeed permit such delegations. She also argues that a study of the linguistic record of "keep and bear arms" at the time of the Second Amendment shows that the phrase was used in a military context. Unfortunately, she does not assess the correctness of these contending positions (she would have more space if she left out Gorsuch's car, home, and work as a private litigator). But all these criticisms are actually disputes about original meaning, not rejections of it.
Disagreement about meaning does not mean that the Constitution is indeterminate. Indeed, because original meaning depends on facts, it is, in principle, ascertainable, unlike the personal values that other judicial decision-making approaches require judges to use when deciding which of many inconsistent precedents to apply.
I whole-heartedly agree with John. The debates we have today are originalist debates. The Constitution may mean one thing or the other, but it has a meaning, which we can ascertain. Read the entire piece.
