Or Bassok (University of Nottingham Faculty of Law and Social Sciences) has posted Originalism as an Empty Signifier (18 pages) on SSRN. Here is the abstract:
In what sense is Dobbs an originalist judgment? Reva Siegel argues that Justice Samuel Alito’s majority opinion does not follow the originalist methodology, yet she insists it should be understood as an originalist judgment. [Ed.: The key articles are Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism-and Some Pathways for Resistance, 101 Tex. L. Rev. 1127 (2022) and Reva B. Siegel, The 'Levels of Generality' Game, or 'History and Tradition' as the Right’s Living Constitution, 47 Harv. J. L. & Pub. Pol'y (forthcoming 2024).] According to Siegel, the brand “originalism” allows supporters of the Republican Party to promote a conservative vision of American identity through constitutional law while keeping the façade of speaking law and not politics. Siegel does not believe that revealing this doublespeak feature of originalism is enough to eradicate it. Instead, her aim is to make originalism an empty signifier—a brand with no distinct content behind it—by making it compatible with progressive ideology. I offer three lines of critique of Siegel’s argument. First, while Siegel is correct in identifying a version of originalism that is focused on American identity, Alito’s majority opinion in Dobbs—especially when compared to the dissenting opinion—avoids issues of identity. Second, Siegel has promoted the idea of constitutional amendments driven by social movements that do not follow the Article V procedure. Her support of this path undermines her ability to use the legal language to criticize judgments, such as Dobbs, in which the change in constitutional interpretation was driven by a social movement. Finally, I argue that one viable way out of the current dire situation of a lack of boundary between law and politics in constitutional law is to take identity issues away from the Court. In this manner, constitutional reason—rather than public will—could better control the development of constitutional law within the Court. Surprisingly, Alito’s judgment in Dobbs opens the path for achieving this result. Yet rather than recognizing Alito as her true ally in making identity issues less court-centric, Siegel prefers to adopt originalism as a tool for promoting a progressive identity-vision while transforming originalism into an empty signifier thus further undermining the boundary between law and politics.
Posted at 6:09 AM