The New Originals

So today I attended the first part of a two day symposium, The New Originalism in Constitutional Law, which co-organizer James Fleming described as a sequel of sorts to the Symposium I attended in 1996 with la Caterina at which the late Ronald Dworkin gave the keynote. (In my post, I said 1997; that's when the articles were published; the actual event was the year before.)

The panels this morning and afternoon were a little less starry than at that symposium. At the morning panel, the Dworkin "Moral Reading" perspective was represented along the lines here by Professor Fleming; Randy Barnett and Keith Whittington represented the New Originalism perspective, and Benjamin Zipursky represented a textualist viewpoint (most akin to my own). The speakers were all first rate, in my opinion, and I really have to praise Barnett and Whittington for presenting the evolution of a much more intellectually respectable vision of originalism than the "Old Originalists" (Bork and Scalia, as well as their academic adherents). For Barnett and Whittington, the New Originalism seeks to find not a subjective original intent (thereby eliding the question of whose intent--the drafter? The Constitutional Convention's? The ratifiers?) which may not even be recoverable, but the "Original Public Understanding" of the text--that is, what the text would have conveyed to a reasonable reader at the time of its enactment. That meaning is the one which controls.

Moreover, the New Originalism draws a critical distinction between the interpretation of text (the OPU above) and constitutional construction, in which (to quote Whittington) "[w]e also construct constitutional meaning in the absence of determinate meaning that we can reasonably discover." This "construction zone" is acknowledged to be quite large, and to be one in which the other modalities of constitutional interpretative theory, such as structure and relationship (Shabash! to my old mentor and his current followers), Dworkin's moral reading, or even legislative history, so derided by Scalia) have legitimate play.

What's encouraging about this, of course, is that the New Originalism does not hold itself out as the sole legitimate approach to difficult constitutional questions. Indeed, Barnett and Whittington cheerfully acknowledged that most thorny issues would fall within the "construction zone." It's a more inclusive, lest rigid form of originalism. (A joke made at the symposium was that the New Originalism was so broad that it included Jim Fleming and Jack Balkin--two very trenchant critics of the Old Originalism. Fleming, suggesting that the New Originalism had become so broad as to lack bite, suggested that the illimitable construction zone might mean that, far from all being originalists now, perhaps we are all Dworkinian moral readers now.)

As Mitchell Berman (author of the helpful Originalism is Bunk) pointed out, for the Old Originalists, originalism was really about a theory of adjudication (what should judges do in deciding cases to limit the subjectivity of their decisions and constrain their prejudices), for the New Originalists, it is a theory about law--a claim as to what constitutes the substantive law of the document.

This isn't to say I'm signing on, mind you, any more than Berman is. Still, I am encouraged as well by the primacy of the text in the New Originalism. To me, nothing typified the intellectual shoddiness of the Old Originalism more than Robert Bork privileging his own understanding of the subjective intent of the undifferentiated Framers over the text by narrowing or entirely erasing constitutional texts that did not fit his views. Justice Scalia's and Chief Justice Roberts' overt hostility to the Voting Rights Act in this week's oral argument in Shelby Co. v. Holder doesn't exactly lead me to believe that the original intent of the Reconstruction Congress is likely to be honored in their opinion(s) in this matter, as a real "original intent" approach would require. (Such a sincere original intent approach was defended by Larry Alexander, along the lines set out here.) By contrast, the New Originalism is less result-oriented, more rigorous, and more faithful to the text. Still, I am not sure the emphasis on the OPU at the time of enactment is so integral to the project. (OK, I get that you could hardly call it originalism if it wasn't but that's really not what I mean). I'm not convinced that the change in linguistics has been sufficient since 1791--or, even more so, since 1868--to presume that current meaning is not an appropriate starting point, understanding that a truly well established change in denotation or usage could be a relevant factor in interpretation. Is it possible that the New Originalism, in short, is merely textualism with a penchant for antiquarian research?

Finally, I also want to note the refreshing contribution made by Tara Smith, in rejecting the rationale of New Originalism along the lines expressed by her here; disadvantaged as she was by speaking near the end of the day, she brought a verve and lightness of touch to her presentation, as well as a bracing return to first principles of constitutional reasoning.