Trump Voters and Modern American Legal Academia

Some Comments on Jonathan Rowe’s Tensions Within the Synthesis of Originalism

In my prior New Reform Club post, The Two Discourses: How Non-Originalists Popularize Originalism and What that Means, I reviewed the traditional criticisms that non-originalists make in regard to originalism. I did not take a position in regard to the merits of the non-originalist’s critique. Rather, I was making an anthropological or sociological claim: (i) non-originalists exist; (ii) non-originalists have a non-frivolous critique of originalism (and for and about originalists); and (iii) non-originalism is the dominant position in legal academia.

I do not think these positions are particularly controversial.

I then turned to the Alliance for Justice (“AFJ”) letter, signed by more than 350 academics, mostly in law, which made essentially an originalist-intent-based argument. The letter argued that the Senate had a constitutionally mandated duty to consider the President’s nominees for the Supreme Court. I criticized both the substance of that letter, and the willingness of its many non-originalist signatories to promote an originalist-intent-type argument.

Over at American Creation blog,[1] Jonathan Rowe took the position that my critique of the AFJ letter was rooted in alleged duplicity or hypocrisy. Rowe explained: “I don’t defend the ethics of such practice. But I can’t find myself outraged by it either. . . . I’ve read too much Leo Strauss to be surprised that philosophers and politicians would engage in communication that offers one message to one set of people, and a different one to another set.” That’s not quite right. My primary concern was not rooted in duplicity or hypocrisy. So let me try again.

I do not know why each signatory signed this letter; only the signatories know why they signed. A variety of possible reasons come to mind. I find it very difficult to believe that most of these academics signed this letter because they agreed with its contents (as opposed to supporting its naked conclusion). Perhaps the non-originalists who signed this letter had some good reasons to sign this letter: a letter they do not really agree with, and perhaps the signatories will tell us what those reasons are. Perhaps. But they might not get around to explaining their real motives and genuinely held beliefs; indeed, they have not come forward to do so.

As I stated, the signatories may have had some good reasons to have signed this letter, but it is also possible to imagine some reasons which are not so good. And we are fully entitled to speculate on what those reasons might be. It is not as if we do not have a long history of non-originalists speculating on the real motives giving rise originalist discourse.[2]

One possible reason why the signatories might have signed this letter is that the signatories did not care to invest the time necessary to craft a fully fleshed-out argument along the intellectual lines they genuinely support. All 350 academics were just too busy; they just could not be bothered. They have time for clients and other causes, books and articles, but not for the public who they are seeking to influence. That’s not hypocrisy: that’s contempt. And if that is the reason, I expect the public will take the hint.

A second possibility which might explain why the signatories signed this letter is that a fully fleshed-out argument along the intellectual lines they genuinely support would not be understood by the public—or, at least, so they believe. It is not that the signatories are lazy; it is that the public is just too s-t-o-o-p-i-d to understand their great wisdom. (Surely, you are not so naive to believe that academics have an aspirational duty to reach out to the public and to educate them?) In such circumstances, the AFJ-350 have no good reason to put forward their genuinely held beliefs. That’s not hypocrisy: that’s elitism. And if that is the reason, I expect the public will take the hint.

There is a final possibility. Apparently, some non-originalists believe they are part of a victimized, long-suffering, powerless, discrete, insular intellectual minority. As Professor Jack Balkin, a prominent commentator (but not one of the Alliance-for-Justice-350), wrote:

Accepting that opposition as the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in. [here] [here] (emphasis added)

and,

The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. [here] [here] (emphasis added)[3]

In this intellectual milieu, signing a letter you do not really believe is not hypocrisy: it is virtue. Thus, signing such a letter is the natural and justified response of victims to an unfair world imposed upon them by malevolent intellectual forces which have deformed reasoned, public debate. That’s not hypocrisy: that’s something else entirely. I am going to refrain from characterizing that reason, but I expect the public will take the hint. 

Is it any wonder that millions of Americans vote for Trump?

Seth

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

PS: Here is my new post on the migration crisis in Europe. Seth Barrett Tillman, Louise Arbour Welcomes You To Administrative Unit 34B, The New Reform Club (Apr. 8, 2016, 8:38 AM). 

PPS: My co-bloggers do good work. So, please have a look around New Reform Club.

My prior post on this subject is [here]: Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that Means, The New Reform Club (Mar. 28, 2016, 9:22 AM)

My prior post is [here]: Seth Barrett Tillman, Part 2: On Ted Cruz’s Eligibility for the Presidency, The New Reform Club (Apr. 7, 2016, 4:18 AM)

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[1] An excellent blog. One of my regular intellectual ports of call.

[2] See, e.g., Robert Post & Reva Siegel, Originalism as a Political Practice: The Right’s Living Constitution, 75 Fordham L. Rev. 545, 561 (2006) (asserting anthropomorphically: “As a political practice that developed in the 1980s, originalism seeks, more or less blatantly, to alter the Constitution so as to infuse it with conservative political principles.” (emphasis added)). Compare E-mail from Professor Gary Peller to the Georgetown Community (on or about Feb. 13, 2016) (“I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.”), https://www.washingtonpost.com/news/grade-point/wp/2016/02/18/georgetown-law-professors-argue-over-how-and-whether-to-mourn-scalia/, with Kimberlé Crenshaw & Gary Peller, The Contradictions of Mainstream Constitutional Theory, 45 UCLA L. Rev. 1683, 1710–11 (1998) (“The Romer decision is sophistry, but no more so than any other manipulation of the baseline from which governmental action is evaluated. Justice Scalia is right that, given the state’s power to criminalize homosexual conduct upheld in Bowers, it is implausible to contend that there is a constitutional duty to protect sexual minorities against discrimination. . . . But Scalia is not ‘right’ because there is no reason to accept the old common-law baseline that Scalia proposes either.” (footnote omitted)). Remarkable—courageous—a wholly transparent willingness to speak truth to power when it really counted—when Antonin Scalia was alive and might have responded.

Readers—feel free to add further examples of this literature in the comments section below.

[3] If this was the “biggest canard,” will Professor Balkin ever tell us what the lesser canards were?