Barry Friedman (New York University School of Law) has posted Discipline and Method: The Making of the Will of the People on SSRN. Here is the abstract:
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Despite the oft-noted move toward multi-disciplinarity, it remains the case that scholars tend to defend their own methodological turf. This can be unfortunate; no particular discipline or methodology is inherently worthy. The methodological questions regarding any given piece of scholarship should be (a) whether the project is talking an unanswered question of some importance; (b) whether the tools utilized are reliable, i.e., apt to teach us something about that question; and (c) whether the conclusions are sound. I address these questions in response to a symposium held concerning my book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. The symposium, at Michigan State University School of Law, brought together scholars from history, politics and law. In this piece I explain the intellectual journey that led to The Will of the People, and respond to critics, on both substantive and methodological grounds. The focus, however, is on the issue that leads this abstract: what are the “right” tools in a multi-disciplinary world?
In the piece, Friedman addresses originalism:
The Constitution of today is in myriad ways not our forefathers’ Constitution. Does anyone really believe otherwise? The framers of the original Constitution would hardly recognize the size of the federal government we have today, a fact that even originalism’s most prominent proponents concede. And if that is conceded, why not much else?
Originalism not only fails as a description of today’s Constitution, it also fails as an account of how judges actually go about interpreting the Constitution. Very few judges are originalists, and even a subset of this small set are “faint-hearted.” I count exactly one relentless originalist on the Court today, and in my view he can afford to take that posture because he isn’t the median justice with the power to decide cases. On the lower courts, I suspect—without having engaged in anything other than casual empiricism—that the percentage may be well below one-ninth. In the political world, originalism is nothing but a slogan for preferred conservative outcomes. In the academic world, it has become an unbelievably refined and pedantic exercise. There is no “originalism”; there are “originalisms,” and they have become almost Talmudic in their differentiation from one another—a “narcissism of minor differences.”
What an incredibly uncharitable take on originalism, despite Friedman's claim that he has no ax to grind. Well, yes originalism does not describe the Constitution because nonoriginalists have improperly changed its meaning for most of the 20th century. And originalism does not describe how most judges presently interpret the Constitution, because for generations originalism has been vilified. But over the past generation, it has been growing and is now gaining adherents even from the liberal side of the spectrum — enough so that even Friedman must address it.
The claim that originalism is nothing but a slogan for preferred conservative outcomes seems baseless. Originalists disagree among themselves, so how could that be? Moreover, that there are many different academic versions of originalism is not necessarily a sign of weakness — despite Friedman's apparent wish — but instead a sign of strength. It means that more talented people are working in this area and debating one another. After all, has there been a time in the last 75 years when originalism was stronger?
Even Friedman's claims about our constitutional practice seem overstated. After all, the nonoriginalist judges are willing to do just about anything except admit clearly and openly that they are not following the original meaning of the Constitution. That tells you something about the confidence that they have for their position.
Friedman's aspersion may work in some quarters and might have worked a generation ago, but it will take more than this to stop the growth of originalism.
Posted at 11:24 PM