The New Originalist Manifesto

Book review: Constitutional Originalism: a Debate. By Lawrence B. Solum and Robert W. Bennett, 2011. Ithaca: Cornell University Press. Pages ix, 210. Reviewed by James E. Fleming

Biblical Literalism and Constitutional Originalism

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism\u27s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches;when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation. It is not surprising that both critics of constitutional originalism and proponents of biblical literalism have noted a connection between the two interpretive approaches, as there are some obvious similarities. Indeed, the similarities go beyond the caricatures that both critics and proponents have tended to offer. Literalism and originalism share a core commitment to the idea that their relevant texts have a timeless, fixed meaning that is readily ascertainable. In addition, both interpretive approaches are in significant part projects of restoration;both are deeply concerned about the loss of constraint that results from interpretation that is untethered to text;both have a strong, self-consciously populist impulse and an equally strong and self-conscious disdain for elite opinion, with respect to both interpretive norms and cultural values;and both maintain that all other approaches to their relevant texts are fundamentally illegitimate because they breach a duty of fidelity. Yet if we are to understand the force of the critics\u27 comparison and, more important, the continuing attraction of originalism to conservative Protestants, we need not only a more nuanced appreciation of the similarities between the two approaches but also a better understanding of the differences. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text — the word of God — is the highest human good. Originalism, in contrast, demands loyally to the text regardless of its moral quality;just or good results are accidental rather than necessary features of originalist interpretation. Originalism\u27s critics have been perhaps too quick to assign to originalists assumptions that, even to literalists, are unique to the project of biblical interpretation. More important, literalists who have been attracted to originalism — including those whose attraction is instrumental — might want to take a closer look at the approach and its positivistic character before giving an unqualified endorsement to a theory that could just as well produce results anathema to their most deeply held (and biblically ordained) beliefs. Reprinted by permission of the publisher

Biblical Literalism and Constitutional Originalism

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism\u27s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches;when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation. It is not surprising that both critics of constitutional originalism and proponents of biblical literalism have noted a connection between the two interpretive approaches, as there are some obvious similarities. Indeed, the similarities go beyond the caricatures that both critics and proponents have tended to offer. Literalism and originalism share a core commitment to the idea that their relevant texts have a timeless, fixed meaning that is readily ascertainable. In addition, both interpretive approaches are in significant part projects of restoration;both are deeply concerned about the loss of constraint that results from interpretation that is untethered to text;both have a strong, self-consciously populist impulse and an equally strong and self-conscious disdain for elite opinion, with respect to both interpretive norms and cultural values;and both maintain that all other approaches to their relevant texts are fundamentally illegitimate because they breach a duty of fidelity. Yet if we are to understand the force of the critics\u27 comparison and, more important, the continuing attraction of originalism to conservative Protestants, we need not only a more nuanced appreciation of the similarities between the two approaches but also a better understanding of the differences. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text — the word of God — is the highest human good. Originalism, in contrast, demands loyally to the text regardless of its moral quality;just or good results are accidental rather than necessary features of originalist interpretation. Originalism\u27s critics have been perhaps too quick to assign to originalists assumptions that, even to literalists, are unique to the project of biblical interpretation. More important, literalists who have been attracted to originalism — including those whose attraction is instrumental — might want to take a closer look at the approach and its positivistic character before giving an unqualified endorsement to a theory that could just as well produce results anathema to their most deeply held (and biblically ordained) beliefs. Reprinted by permission of the publisher

Beyond Babel: Achieving the Promise of Our American Constitution

This Article completes a therapeutic treatment of the originalism debate. The long-running debate over constitutional originalism is pathological, more confused than insightful or important. This Article completes the course of therapy by sketching the constitutional discourse and practice we may hope for after the debate over originalism is transcended and left behind. In so doing, it disarms the final defense of the participants in that debate in that they have no alternative. Only by sketching what that alternative is can its existence be proved, and the ideopolises of the protagonists finally be reconstructed. This Article shows the constitutional theory and criticism we may aspire to if we are freed of the bonds of the debate over originalism and its underlying assumptions. First, the Article outlines what a post-debate constitutional decision process would look like if the judicial decision-makers no longer felt compelled to articulate their opinions in the vocabulary of that debate. Second, it describes what constitutional scholarship could look like without the constraints of the Weltanschauung shared by the protagonists in the originalism debate. Third, the Article gives currency to the claim that abandoning the debate about originalism can revive the public discourse about our Constitution, what it says, what it does not say, and what it should say. Fourth, and finally, the Article suggest how abandoning the perspective of the debate about constitutional originalism frees even the principal protagonists in that debate to engage with the American Constitution--and with those who would apply the Constitution very differently--in a more direct and powerful way. The framework of the originalism debate constrains and distorts the argument and discourse rather than enriches it. At all of these levels, leaving the debate over constitutional originalism behind gives us a revived constitutional discourse and a more robust American Constitution

The Role of the Federal Judge in the Constitutional Structure: An Originalist Perspective

Join me now in examining some of the structural features of our Constitution. And let’s do so by focusing upon cases that have come before my court—the United States Court of Appeals for the Ninth Circuit, the second highest federal court in the land, inferior only to the Supreme Court of the United States. My goal is to present, in modest outline, an originalist perspective on the federal judge’s role, particularly my role as a circuit judge, in the constitutional order

Symposium: Sexual Orientation, Gender Identity, & the Constitution: Queer Black Trans Politics and Constitutional Originalsim

Queer Black trans politics offer an important frame for understanding the current constitutional moment. This is a moment in which the Supreme Court’s newly enthroned constitutional originalist project is taking off in ways that have race, sex, sexuality, and trans equality rights in its sights. Thinking with queer Black trans politics—and, in particular, their demands for intersectionality and for centering Black trans lives—this Essay presents a distinctive topology of LGBTQ rights and their intersections with constitutional race and sex guarantees. It considers how a queer Black trans-focused intersectional thinking plays out, including in the context of reproductive rights, and traces how intersectionality isn’t only being used by progressives in pro-racial justice directions, but also by social conservatives in regressive ways that warrant attention in anti-racist circles. After surveying what all this means for the future of LGBTQ legal rights, the Essay concludes by underscoring the stakes—both dangers and opportunities—in the days ahead, as pressures on LGBTQ rights continue to mount in the courts and as struggles for LGBTQ rights increasingly shift to the field of politics. With an eye on those shifts, the Essay closes by calling on LGBTQ communities to attend to queer Black trans politics and their visions with care, resisting the ostensible seductions and comforts that a return to older ways of thinking about and practicing “white club” LGBTQ politics might provide