The American Constitution Society Still Does Not Have A Competing Theory Other Than "Antitrumpism"

After half a century of great debate, the originalists are still not tired of winning.

Jeffrey Toobin had a remarkable column in the New York Times, titled "The Plan for a Radically Different Supreme Court Is Here." What is that plan? Read the article from top to bottom, and you won't find an actual plan. Not even the concept of a plan.

The ostensible purpose was to suggest that the American Constitution Society could be a viable alternative to the Federalist Society. There is glowing praise of ACS's newish President, Phil Breast. This column follows another glowing profile of Brest by Carl Husle in the Times in October. (I don't recall any such similar fanfare for Sheldon Gilbert, who has effortlessly taken the helm of FedSoc.) Yet if you peel a few layers deep off Toobin's lede, you realize precisely why ACS can never rival FedSoc. It is not because of lack of funds or lack of power, but due to a lack of ideas. In short, despite their best efforts, there is no viable alternative to originalism.

Like many Democrats, Mr. Brest rejects originalism and believes there should be a different way to interpret the Constitution. "We have to have an affirmative message around constitutional interpretation in the same way there has to be an affirmative message around elections and politics," he told me. "And it can't just be, 'We're not originalists' in the same way that A.C.S. can't just be, 'We're not the Federalists.' That's not how I view the organization, and that's not how I want to be part of the solution to countering originalism. There has to be an affirmative piece there."

What is that "affirmative" theory? Brest has no clue. The only viable strategy is "antitrumpism."

For now, under Mr. Brest, the A.C.S. seems headed for an approach that looks like the one that Democratic politicians have so far adopted: aimed more at opposition to Mr. Trump's record rather than on a specific, alternative vision for the Constitution. In his opening message to the group, Mr. Brest described the A.C.S. as building "a bulwark against overreach by the Trump administration and the Roberts court." This is understandable, perhaps even wise, because in the view of Mr. Brest's universe of allies, the Trump administration has violated constitutional norms under any interpretive theory.

So much for a ruling for the ages.

How does that approach translate to judicial philosophy? In other words, what would a future Democratic President look for in judges? Brest also doesn't know:

Mr. Brest has pledged that A.C.S. will continue its Biden-era focus on judicial appointments. "As an organization, we will stay on top of legislators, we will stay on top of the next administration, to make sure that judges are the No. 1 priority going forward," he said.

As for what those judges will stand for — as opposed to what they stand against — Mr. Brest has no clear answer. He, along with other Democrats, will need one.

I've lost count of the number of law review articles that attack originalism and textualism. Frankly, I've stopped reading them because they don't matter anymore. There was an ideological battle that was waged and won. And until the left can put forward a viable theory to compete, originalism will remain the dominant jurisprudential force. As Justice Scalia would say, FedSoc doesn't need to outrun the bear, we only need to outrun ACS. After half a century of great debate, the originalists are still not tired of winning.

Comments

[bloocow2]

Speaking as an outsider, it just seems so insane to me that, at the centre of your legal system, you have a document that is:

a) Basically impossible to amend (you've had, what, two in the last 50 years?), and;
b) Requires you to parse the thoughts and language and intentions of men who have been dead for more than 200 years

Men who -- even if they were not flawed human beings with the capacity to be shortsighted, or just plain wrong about things -- have been dead for more than 200 years! If they knew about assault rifles back in the 1700s, do you really think the writers of the Constitution would have been adverse to some kind of gun control?

Yes, I am ignorant, I'm not an expert or anything. I probably don't understand some nuance of the Originalist argument. It just feels so weird to me to run a system like this, to be like "Well, it's in the Constitution, so... nothing to be done!" Are Originalists happy with this?

[Krayt]

The purpose of the deliberately laborious, supermajority design of amendment is to stop seductive weasels with the gift of gab from easily arrogating power unto themselves.

You'll note amendments that boost freedom tend to be easier to pass than those which give those in power more power. You lament the difficulty of some to gain more power, easily, as if it were a simple, normal law needing a simple majority.

I need to keep reminding you these people are nothing noble. If you need a lesson in the dangers of people with the gift of gab and the infinite power of a simple majority, look about you.

Oh! You don't mean him! You mean your guy.

You are the problem. I mean neither side. A laborious process requiring supermajority and years for The People to ponder the wisdom of giving government more power has served us well for 250 years. And your country, too, more likely than not, by extension.

[Blackstone]

Certainly it would be helpful if liberal concepts were to be suddenly well articulated by a scheme so simple and digestible as originalism -- whatever the founders did is dogmatically proper even if the citizenry now alive disagrees. Yet complex circumstances do not succumb easily to simple solutions. I don't think the wins of originalism are the result of argument. Chicanery has long been the tool of choice of unscrupulous politicians of all stripes. Since 1968 it has been wielded with vigor by the Republican Party. That may be just what politics is, but it's not any kind of polemnical tour de force, and it is transient. Things will not stay the same.

[The Margrave of Azilia]

To interpret the Constitution, the Court has been invoking history from the very beginning, sometimes including legislative history.

But their historical analysis usually looked to precedents and legal treatises - which certainly means they looked to historical meaning, though this wasn't "originalism" in the modern sense.

In particular, the Court used precedents and treatises to explain common-law terms which were included in the Constitution.

As for non-common-law terms, like commerce among the states, they were more likely to look to first principles, though in the 20th century they started going unduly nationalistic, in my view.

[Doug Heffernan]

Non-originalism is not a great name for a theory, nor is it easy to define, as Steven Mazie explains (@29:50): https://www.youtube.com/watch?v=WuaQCoRkTwY

But even the most strident originalists are selectively so. We'll all soon see an example of originalists contorting themselves to explain why a general rule doesn't apply to the Federal Reserve. Certain consequences will always override any theory or other, text and history be dammed.

ACS isn't likely to come up with a better name or better definition. Mazie suggests the difference is something like monism vs pluralism. That's not much better, but it doesn't really matter.