Michael Dorf has a post entitled Advice to Conscientious Originalists: Rebrand, responding to Randy Barnett's Dorf on the stakes of the Originalism/Textualism Debate and my The Role of Noble Lies in Constitutional Scholarship: Comments on Dorf and Barnett, both of which responded to Dorf's original post, The Stakes of the Originalism/Textualism Debate.
Dorf's original post affirmed what formulated as The Legitimation of Ideological Originalism Thesis. Here is my statement of the idea:
Although originalism in theory can adhere to the requirements of the Constraint Principle and therefore translate the original public meaning of the constitutional text into originalist doctrines and decisions, the practical effect of originalist theorizing is to legitimate ideological originalism, understood as the masking of decisions motivated by ideology that depart from original meaning (in a substantial range of cases) as based on an ideologically neutral method of constitutional interpretation and construction.
Dorf disavows one possible implication of this thesis, that originalists should lie about originalism, although he does note that in some cases scholarly deception may be justified, citing the case of Heisenberg, who may have deliberately thwarted the development of the atomic bomb during World War II. If Heisenberg did this, he certainly did the right thing, but I assume that Dorf realizes that a comparison of originalist theorizing with nuclear weapons and of any form of originalism with Hitler is problematic on so many levels that it might have been unwise to put forth this example.
Dorf suggests another analogy in connection with the principal point of his post--which is the suggestion that "public meaning originalism" be rebranded in order to avoid any implied endorsement of "original expectations originalism" or "ideological originalism." He suggests that using the label "Marxian" is insufficient to differentiate Marxist economics with what is usually called Marxism-Leninism as a political ideology: very few economists would want to associate themselves with Stalin's perversion of Marxism that caused the deaths of millions of Soviet Citizens, not to mention the gulags. Again, this analogy is far-fetched and in my opinion the implied but then disavowed equation of any form of originalism with the worst abuses of "communism" is irresponsible, but I take it that Dorf's point is that any "branding" that employs the word "originalism" creates the problem identified by the Legitimation of Ideological Originalism Thesis.
Stepping back, I must say that I find it remarkable that an opponent of originalism would make this move. If the intellectually content of "public meaning originalism" is true, the normal response would be to endorse the position, not to rename it. And who does Dorf think that the rebranding is going to fool? If public meaning originalists suddenly started saying, we still affirm the intellectual content of public meaning originalism, but we are now going to call it by a new name, who would be taken in by this ploy? The primary audience for originalist theoretical scholarship consists of constitutional theorists, mostly in the legal academy but also in government, politics, and political science departments, with a few others in think tanks and other roles occupied by public intellectuals. This is a sophisticated audience.
Dorf did not reply to two of the arguments that I made in my prior post. Let me briefly restate them, plus a third point:
- It is doubtful that academic theorizing about originalism has any significant legitimation effect that translates into constitutional practice in the short run. If Dorf believes that my work or the work of Randy Barnett has changed the practice of judges, I would love to hear about his evidence! The long run is different. Over the course of decades, I believe that originalist theorizing could change constitutional practice--just as progressive constitutional theory in the early twentieth century had an influence decades later on the Warren Court.
- One of the main points of originalist theorizing is to enable academic criticism of the ideological employment of originalism. The delegitimization of "bad originalism" will not work if the best originalist theories disavow the label "originalism."
- It is too late. Gary Lawson started writing about public meaning originalism in the early 1990s. Randy Barnett and Keith Whittington came on board in the late 1990s. My first writing on originalism was done in the 1980s and my more recent body of work begins ten years ago. Rebranding is not an option. And really, Michael Dorf, do you seriously think that it is? Or were you just, "pulling my leg"?
Because Dorf does not address these arguments, we will need to wait and see whether and how he might respond.
At this point, I would like to take a step back from Dorf and look at a larger issue. Dorf is not the first constitutional theorist to engage in argument about the word "originalism" and the concept originalism to which the word refers. "Originalism,” “nonoriginalism,” and the phrase “living constitutionalism” do not have precise and universally accepted definitions. Both the words and the concepts for which they stand are disputed. Sometimes these disputes about the categories of constitutional theory are just as sharp and rancorous as the substantive disagreements with which they are associated.
Borrowing from the philosophy of language, we can use the idea of “metalinguistic negotiation” to refer to the process by which the meaning of words like “originalism” and phrases like “living constitutionalism” are contested (adversarially) or negotiated (cooperatively). These words and phrases represent theoretical concepts that are shaped differently by different theorists. On the one hand, we want our theoretical vocabulary to be theoretically precise and conceptually clear. On the other hand, we would like our terms to reflect actual usage. When the usage itself is inconsistent and when even individual theorists do not formulate their concepts precisely, the result can easily be a muddle of miscommunication. There are undoubtedly a variety of reasons for persistent disagreement over the meaning of “originalism” and the dividing line that separates originalism and nonoriginalism.
The word “originalism” was introduced by Paul Brest in the following passage: “By ‘originalism’ I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.” Brest defined “originalism” using the word “or” in connection with two distinct positions; both constitutional intentionalism or constitutional textualism were forms of originalism. As discussion of originalism progressed, the term came to be applied to positions that were defined more precisely, framers’ intentions were differentiated from ratifiers’ understandings and the public meaning of the constitutional text. At a later stage, views that focused on the original methods of constitutional interpretation and the original law emerged. All of these views are members of the originalist family, and almost all of the theories that are called originalist affirm some version of the Fixation Thesis and the Constraint Principle. But there is no reason to expect that we will be able to give an account of the necessary and sufficient conditions for a theory to count as originalist that will capture all of the ways that the words “originalist” and “originalism” are used in the public sphere and the discourse of constitutional theory.
There is another reason for disagreement about the word “originalism.” The word “originalism” is ideologically charged. The word “originalism” and the phrase “living constitutionalism” are both ideologically charged. “Originalism” has been associated with constitutional conservatism and “living constitutionalism” with progressive or liberal constitutionalism. “Originalism” is associated with the Reagan administration and especially with Attorney General Ed Meese and the Office of Legal Counsel during Reagan’s second term. And contemporary originalism is associated with Justices Antonin Scalia and Clarence Thomas. “Living Constitutionalism” is associated with pre-New Deal progressive constitutional theory and with the Warren Court in general and Justice William Brennan in particular. On both sides, there is a tendency to associate the labels with associated political and ideological positions.
It is my belief that this results in a tendency to “choose sides” in the debates over originalism and living constitutionalism. If originalists are the “good guys” and living constitutionalists are the “bad guys” (or vice versa), then ideological consequences follow. Progressives may believe that originalism is obviously false and pernicious, and conservatives may believe the same thing about living constitutionalism. Both sides may believe that it is simply impossible to affirm what we can call “compatibilism”—the view that some forms of living constitutionalism are compatible with some forms of originalism. Compatibilism would imply that one could be simultaneously conservative and progressive, but these positions are conceived oppositionally and are demarcated on the basis of differences and not agreements. For this reason, metalinguistic negotiation over the meaning of “originalism” and “living constitutionalism” is likely to be contested and not cooperative.
If this diagnosis is correct, then it will have consequences for the process of metalinguistic negotiation over the terms “originalism” and “living constitutionalism.” Some progressives may insist that the criteria for what counts as “originalism” must include an ideological component; a related view would be that “originalism” must reject certain progressive outcomes or a set of cases that are praised by progressives and criticized by conservatives. Someone who argues that the original meaning of the constitutional text is consistent with left-leaning outcomes (such as a right to abortion, a right to same-sex marriage, or expansive national legislative power) are not really “originalists”—because such a person fails to satisfy the ideological component of the concept of “originalism.” Some conservatives will be similarly motivated: anyone who advocates for progressive outcomes must, by definition, be a “living constitutionalist” who rejects fidelity to the constitutional text as a fundamental political value.
One way to think about the ideological dimension of metalinguistic negotiation over terminology in constitutional theory borrows from Bernard Williams’s notion of a “thick moral concept” for which descriptive and evaluative content are entwined. Similarly, it is possible that one of the positions taken in metalinguistic negotiation over the words “originalism” and “living constitutionalism” advocates for the position that these words should be used as “thick ideological concepts”: in other words, the content of the terms should be conceived as combining ideological and descriptive-theoretical elements.
I believe that the move to conceptualize "originalism" as a thick ideological concept is a grave error, precisely because it does violence the essential conceptual content of originalism as a constitutional theory. The whole point of originalism is to take ideology out of judging. The most powerful arguments for originalism are based in the idea of the rule of law: I have recently summarized those arguments in a post entitled, The Case for Originalism, Part Five: The Argument for Originalism from the Rule of Law.
I understand why opponents of originalism might prefer to adopt the position that originalism is a thick ideological concept. This move relieves them of the responsibility for engaging originalism on the merits. Because originalism is ideological, it follows that progressives are entitled to reject it without engaging in substantive debate about the merits of the position. But this is a very bad move from the perspective of conceptual ethics. Nonoriginalist living constitutionalists should engage originalism on the merits. Trying to make originalism "go away" by urging the theorists who have developed originalism in its strongest forms to change the names of their theories is certainly a bold move. It takes courage to make such a move in public. I am grateful to Michael Dorf for raising these issues.