In the Claremont Review of Books, Randy Barnett: Originalism and Its Discontents. From the introduction:
… Some 30 years after the failed nomination of Bork, President Donald Trump nominated Circuit Judge Neil Gorsuch to assume the seat vacated by the death of Justice Antonin Scalia. Hearings occupied four days. Just over two months after his nomination, Gorsuch was confirmed by a vote of 54-45, with two Democrats joining all 52 Republicans.
Unlike previous nominees, Gorsuch expressly endorsed originalism as the proper method of constitutional interpretation. Indeed, he had been chosen by the White House largely because he had publicly endorsed originalism. Senate Democrats sought to make an issue of his commitment. Yet this time both the result and the popular discourse were different. Despite harsh questioning by Senate Democrats, there was no public outcry about Gorsuch’s originalism, no litany of the civil rights that would be rolled back were he to be confirmed.
What happened over that 30-year period to account for this difference in the tenor and outcome of the debate? Why did the criticisms of originalism aimed at Bork get such traction while the critics who questioned Judge Gorsuch repeatedly spun their wheels?
Part of the difference, surely, was that the Senate was now controlled by Republicans. But that does not explain why all previous Republican nominees in the 30-year interim declined to adopt the label “originalist.” A bigger part of the difference was that in the 30 years between Bork and Gorsuch a small handful of legal academics—a very small handful—developed the theory of originalism. Because of them, the intellectual terrain had greatly shifted from 1987 to 2017.
With Gorsuch’s elevation to the Supreme Court, the efforts of these scholars bore fruit. After Gorsuch was confirmed, both Brett Kavanaugh and Amy Coney Barrett self-identified as “originalists.” To a significant degree, so too did Justice Ketanji Brown Jackson, without using the label. Justice Jackson’s testimony led some on both the left and right to claim that originalism had become so amorphous as to be meaningless. But in this they were mistaken. Even an insincere commitment to the original meaning of the Constitution is the homage that vice plays to virtue.
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Nothing exemplifies the mainstreaming of originalism more than the latest book by Cass Sunstein, the prolific and highly regarded Robert Walmsley University Professor at Harvard Law School. In How to Interpret the Constitution, Sunstein treats originalism as an entirely respectable—though erroneous—method of interpretation. Unlike purely political partisans, he demonstrates a knowledge of the nuances of modern originalist theory.
Because Sunstein repeatedly criticizes originalism, the extent of his concessions may not be obvious to casual readers. To illustrate, I must string together some disparate quotations: “The text matters. If judges do not show fidelity to authoritative texts, they cannot claim to be interpreting them.” “To read the Constitution, we need to know the English language. But to understand what the Constitution means, an understanding of the English language is not nearly enough.” “Many people insist that the text of the Constitution must be interpreted in a way that is consistent with the original semantic meaning of its words. Semantic originalism insists that in deciding on the meaning of words, we have to ask a question about history: What did the word mean, simply as a matter of the English language, at the time of ratification?” “If the semantic meaning of words shifts over time, it is fair to say that what is binding is the original semantic meaning, not some new semantic meaning. Almost everyone almost always accepts semantic originalism.” …
RELATED: In the same issue, Ilya Shapiro reviews James Rosen's Scalia: Rise to Greatness, 1936–1986.
Posted at 6:19 AM