At The New Rambler, Calvin TerBeek: Originalist Scholarship and Conservative Politics (reviewing A Republic, If You Can Keep It, by Neil Gorsuch (Crown Forum 2019), and Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge University Press 2019), by Lee J. Strang). Here is the introduction:
Neil Gorsuch is an ideological entrepreneur. His new book—pointedly not “intended for academics” (8)—is a folksy paean to constitutional conservatism. Gorsuch’s primary audience for his evangelization is the conservative media ecosystem and the engaged conservative citizen who consumes its wares. It is no coincidence the justice gave an exclusive preview of the book to The Federalist, a pro-Trump conservative web magazine. Gorsuch wants to fill the role of conservative scholar-judge for the knowledge structure that movement conservatives have impressively built up for decades. This book is part of his bid to succeed Antonin Scalia, but with the late justice’s hard edges sanded down.
Likewise, University of Toledo law professor Lee Strang’s book is the product of—and is also primarily aimed at—the conservative knowledge structure. Strang’s core audience is fellow conservative academic lawyers who subscribe (or are sympathetic) to originalism and their liberal interlocutors in the legal academy. The production of Strang’s book was supported by conservative institutional sites, including Georgetown Law’s Center for the Constitution (xi). The Center is run by Randy Barnett who conceived the first constitutional challenge to the Affordable Care Act. Reinforcing the ideological feedback loop: Barnett’s colleague, Larry Solum, with whom he runs an “Originalism Boot Camp” for conservative and libertarian law students, testified on behalf of Gorsuch at the nominee’s confirmation hearing. At Gorusch’s hearing Solum delivered a defense of originalism, and here, Solum blurbs the book.
Gorsuch’s central aim is to translate originalism—defined by the justice as reliance on “text and history and how the document was understood at the time of ratification” (25)—and its attendant conservative legal policy goals for a lay audience. Strang’s book serves as a compendium of the conservative and libertarian scholarship which Gorsuch, in turn, name-checks and popularizes in his book. Strang endorses this as the conservative legal movement’s “intellectual division of labor” (95). Put differently, Strang calls for conservative and libertarian legal academics to produce more law review articles (and books) for the conservative justices to cite in their opinions (and books) in order to legitimate them with ostensibly neutral academic expertise. Thus these books, instantiating the “intellectual division of labor,” provide a window into how ideas are disseminated and institutionalized by the conservative legal movement and the Republican Party.
An interesting and engaging review, but I must say I'm baffled by this sentence: "One goal of [Professor Strang's] book is to reassert the control Georgetown’s Center for the Constitution once had over the fractious intra-originalist debate in the legal academy (42)." I have great respect for Georgetown’s Center for the Constitution but I'm fairly confident it did not ever "control" the intra-originalist debate (nor do I think the Center has such a goal). I at least have never felt controlled by it!
Posted at 6:16 AM