The Two Discourses: How Non-Originalists Popularize Originalism and What that Means

Non-originalists communicate in two different discourses.

One discourse is the mode of truth: it is the mode they reserve for their sophisticated clients and legal briefs, for their colleagues and students. In this discourse, non-originalists critique originalism as ...

1.   Wrongheaded or false because the Constitution is not prolix, it is only an outline, and the gaps must be filled in by each generation;

2.    Wrongheaded because the Framers’ and Ratifiers’ intent is not discoverable;

3.  Wrongheaded because different Framers’ and Ratifiers’ intent, although discoverable, was not unified;

4.  Wrongheaded because original public meaning is not (now) discoverable (e.g., the Constitution is too old);

5.  Wrongheaded because during the framing era and during ratification there were a multiplicity of original public meanings;

6.  Wrongheaded because judicial rulings and precedent are the superior means through which to determine the meaning of the Constitution;

7.  Wrongheaded because judges, academic lawyers, and lawyers are not good historians;

8.  Wrongheaded because the Framing-era and ratification lacked democratic bona fidés by modern standards;

9.  Wrongheaded because we should not be ruled by the moral norms or the dead hand of the past; and,

10.Wrongheaded because originalism gets the wrong (e.g., conservative or libertarian) results.

The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public ... non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.

For example, several days ago, more than 350 academics (in law and other fields) signed a letter calling for Senate hearings on the Merrick Garland nomination. My understanding is that this letter was circulated by the über-liberal Alliance for Justice. What did the letter say?

The Senate must not defeat the intention of the Framers by failing to perform its constitutional duty.

Letter from Professor William Andreen et al. to Majority Leader Mitch McConnell et al., Re: President Obama’s Nomination of Judge Merrick Garland (Mar. 7, 2016) (emphasis added).

[From Seth Barrett Tillman (October 20, 2020): the letter no longer appears on the Alliance for Justice’s website. I have posted a copy here: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3715342>; and, <https://perma.cc/WY7Y-8JJ4>.]  

Read the list of those who signed—are any of them originalists, much less originalists of the original intent variety? Perhaps somewhere in that list of 350 academics, there might be a couple. But are not the vast majority garden-variety non-originalists? Why did these people sign this letter? Could not the signatories have crafted a letter for the Senate and for the public explaining their position: that Judge Merrick Garland deserves a Senate hearing, and also support their conclusion via a mode of constitutional interpretation that they (i.e., the signatories) actually believe? Do any of these people teach their students that constitutional meaning, obligation, and duty are determined by the intent! of the Framers!? (Most originalists stopped teaching this discourse a generation ago: they (i.e., the signatories) upgraded from original intent to original public meaning.)

Here is one example. Dean Chemerinsky signed the Alliance for Justice letter. But on another occasion, Chemerinsky wrote:

But I must admit, in all honesty, that I believe one could find just as much evidence and just as many quotations from the Framers for each of the [competing theories of the First Amendment]. This is why I believe that we cannot resolve modern constitutional issues by looking back at history . . . .

Erwin Chemerinsky, Why Church And State Should Be Separate, 49 Wm. & Mary L.Rev. 2193, 2204–05 (2008) (footnote omitted) (emphasis added). Has Chemerinsky changed his mind?

Perhaps Chemerinsky believes the Framers’ intent is discoverable in regard to Senate advice and consent, although not in regard to the First Amendment. That’s a possibility—a way to reconcile his two positions.

There is a second possibility. The alternative view is that Chemerinsky signed the letter because he agrees with the result argued for, and because he understands that non-originalist discourse is not favored by the American public he is hoping to convince. In other words, Chemerinsky and his colleagues are unwilling to make the effort to explain to the public that a better mode of constitutional discourse is possible; indeed, the 350+ signatories hope to convince the American public via a mode of discourse that they (i.e., the signatories) reject, without even putting the public on notice that they (i.e., the signatories) reject that discourse. No one is stunned by this situation precisely because it is the norm.  

I think it was Justice Kennedy who once said: “Even a dog knows the difference in being stumbled over and being kicked.” If Chemerinsky, a dean at a publicly funded law school, and 349 other academics take this second approach, reserving one mode of discourse for the elect, and another for the public, then the public, particularly tax-paying public, will take the hint.

Is it any wonder that millions vote for Trump?

Seth

Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that Means, New Reform Club (Mar. 28, 2016, 9:22 AM), <https://reformclub.blogspot.com/2016/03/the-two-discourses-how-non-originalists.html>; 

PS: My co-bloggers do good work. Please have a look around New Reform Club. 

PPS: The well-informed Michael Lotus tells me the quotation’s original source was Holmes, not Kennedy. 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post is [here]: Seth Barrett Tillman, Letter to The Boston Globe’s Letters Editor: Responding to Dean Martha Minow (Harvard) and Dean Deanell Tacha (Pepperdine), The New Reform Club (Mar. 25, 2016, 6:26 AM).