Thursday, April 13, 2017

Advice to Conscientious Originalists: Rebrand

by Michael Dorf

My post on Tuesday on the stakes of the originalism debate sparked very thoughtful responses by two of the leading "new" originalists: Georgetown Law Professors Larry Solum and Randy Barnett. In a Postscript I added to update my original post, I was happy to accept fully one of Prof. Solum's points (about the use of the term "semantic originalism") and to clarify how much of the level-of-generality argument I meant to endorse. Meanwhile, Prof. Barnett zeroed in on a claim I made in both Tuesday's post and at greater length in my 2012 Harvard Law Review essay The Undead Constitution: that scholars who in good faith pursue public meaning originalism thereby provide aid and succor to judges, public officials, and pundits who misuse their work in defense of original-intentions-and-expecations originalism or worse, ideological originalism.

Well so what? Why, Prof. Barnett asks, should the fact that some actors promote bad originalism prevent scholars with integrity from pursuing good originalism? Building on Prof. Barnett's piece, Prof. Solum argues that constitutional scholars ought to be scholars first and thus our obligation as scholars to "speak the truth" should prevail over any putative obligation to avoid giving ammunition to those who would misuse it.

Here I will briefly respond to this important question that Professors Barnett and Solum raise. To summarize, my answer is that scholars who are persuaded that public meaning originalism is correct should pursue public meaning originalist scholarship but that they should give it a new name that does not include any variants of the words "originalist" or "originalism."
The point of Tuesday's post was to explore the stakes of the debate over originalism, not to engage in the debate over whether originalism is correct. I treated the arguments for and against originalism and other approaches to interpreting the Constitution as largely offstage, asking why it mattered. I said that the debate over originalism matters in part because of the danger that good arguments by scholars for public meaning originalism will end up being appropriated by political actors to legitimate intentions-and-expectations originalism or, worse, what Prof. Solum calls "ideological originalism", i.e., law office history that disguises normative views in the supposedly neutral language of scholarship. I did not mean to argue--either in Tuesday's post or in any of my prior work--that the risk of appropriation, standing alone, suffices either to discredit public meaning originalism or to give people who think that public meaning originalism is, all things considered, best that they ought not write originalist scholarship because of the real-world harm to which such scholarship might lead.

Accordingly, I am not sure that I deserve Prof. Solum's generous praise for staking out a "refreshing and brave" position. I  did not think that I was addressing the question of what scholars who think originalism is correct ought to do, except perhaps in a few special cases, like the late Ronald Dworkin and Professor Jack Balkin. In his Comment in Justice Scalia's book, A Matter of Interpretation, Prof. Dworkin wrote that he accepted semantic originalism but argued that while Scalia purported to accept it as well, in practice Scalia was inconsistent, sometimes acting on intentions-and-expectations originalism instead. (pp. 120-22).  In his own book Freedom's Law, Prof. Dworkin called semantic originalism "innocuous." (p. 291). Meanwhile, as I noted on Tuesday and at length in The Undead Constitution, Prof. Balkin has made quite a splash by arguing that, properly understood, public meaning originalism is equivalent to living constitutionalism.

My contention that the prestige of original meaning originalism could be used to validate the older less defensible version of originalism to which public officials, many judges, and pundits subscribe was directed at scholars like Dworkin and Balkin--i.e., scholars who accept what Prof. Solum characterizes as the thesis that public meaning originalism and living constitutionalism are substantially equivalent. That may be, I meant to be telling them, but by calling living constitutionalism--which you think is correct--a version of originalism, you undermine living constitutionalism in the real world. To be clear, I was not urging the likes of Balkin or those who would follow in Dworkin's path to change their substantive views. Rather, I was urging them simply not to characterize those views as originalism because of the collateral consequences of doing so.

Upon reflection on what Profs Barnett and Solum have said, I am prepared to extend my caution to them and to others who reject the thesis that originalism and living constitutionalism are substantially equivalent. Notwithstanding their rejection of that thesis, these scholars also have reason to worry about the misuse of their scholarship in public debate. I agree with Prof. Solum that this is not a reason to abjure public meaning originalist scholarship, but it is a reason to call their approach something new that is not easily confused in public debate with intentions-and-expectations originalism or with ideological originalism.

Consider an admittedly imperfect analogy. Economists who follow Karl Marx in adopting a labor theory of value or in other ways but do not share the political ideology of communism typically call themselves "Marxians" to distinguish their views from the views of political "Marxists." The impulse is sensible but, as I said, the analogy is imperfect for three reasons.

First, the need to distance oneself from real-world political communism is stronger than the need to distance oneself from real-world intentions-and-expectations or ideological originalism because the former has a much worse track record than the latter: regimes calling themselves Marxist killed tens of millions of people and immiserated hundreds of millions, whereas intentions-and-expectations or ideological originalism has led to some bad Supreme Court decisions.

Second (and cutting in the opposite direction), the influence of Marxian economists on the real world is negligible. Marxian economists rebranded to avoid the taint of Marxism. By contrast, it is at least arguable that academic public-meaning originalism has played some substantial role in propping up real-world intentions-and-expectations originalism and ideological originalism.

Third,"Marxian" is a terrible rebranding because it is too similar to "Marxist." Thus, I urge scholars who wish to distinguish their brand of public-meaning originalism from intentions-and-expectations originalism and ideological originalism to choose a label that contains no variants of the root "original." I have no expertise in marketing, so I won't offer particular suggestions. Maybe Prof. Barnett or Prof. Solum or some other public-meaning originalist can sponsor a public contest?!

That is really all I want to say by way of clarification of my Tuesday post, but, inspired by the observations of Profs. Barnett and Solum, I do want to add a few words about the broader problem that they (very generously) credit me with (inadvertently) raising. Because I believe that rebranding suffices to address the problem of what we might call stolen credibility in the originalism debate, there is no need to confront a harder case in which a disclaimer might be insufficient. But that is not to say that harder cases might not exist.

Such cases are easiest to identify in the pure and applied natural sciences. If you think it likely that your scientific work will likely lead to the creation of a weapon that will be used for evil purposes, you might reasonably treat that fact as a sufficient reason to pursue a different line of work. To be sure, that would not necessarily be problematic. Prof. Solum writes: "Truthfulness is a virtue, and the virtue of truthfulness is especially important for scholars.  Academic institutions, especially research universities, have a social obligation to pursue the truth." Quite right. But a scientist who pursues one line of research rather than another does not violate academic values, so long as she pursues the line of research she chooses with integrity, even if the motive for pursuing this rather than the other line of research was to avoid doing harm in the real world.

Are there cases in which a scholar would be justified in lying about her findings? In extremis, yes. Consider Werner Heisenberg, who was a key player in the unsuccessful Nazi program to build a nuclear bomb. According to one hotly contested account, Heisenberg deliberately sabotaged the program in order to deny Hitler the bomb. If so--and even if doing so involved knowingly publishing false findings--that strikes me as morally justified, indeed as probably even morally required. But that is an admittedly extreme example that fulfills Godwin's Law. Whether it is possible to conceive of a more realistic and mundane one I leave for others.