by Saul Cornell, the Paul and Diane Guenther Chair in American History, Fordham University
The so called new originalism has generated a good deal of academic buzz over the past few years. (As is true for most forms of originalism the actual impact of the theory on the behavior of courts has been quite modest.) It is hard to find much support for originalism among professional historians. Judged from the perspective of history, most new originalist scholarship seems methodologically simplistic and ideologically tendentious. Rather than move constitutional theory forward, new originalism represents a serious intellectual step backwards
In the current issue of The Virginia Law Review Professor Lawrence Solum of Georgetown, a prominent new originalist, responds to some of this recent historical criticism. Solum’s variant of new originalism is the most sophisticated of the many rival theories now floating around. Moreover, he maintains that his originalist approach to history rests on truths derived from philosophy and linguistics, insights that he claims historians have neglected. Although Solum has dressed up his theory in a ponderous philosophical jargon, his approach has done little more than wed the old law office history to a new law office philosophy. Stripped of its pretentious vocabulary, Solum’s theory leaves us at the same old impasse: originalism remains an ideology pretending to be a scholarly methodology.
Solum describes his theory as follows:
Because constitutional communication (like legal communication generally) is simply a form of human communication, theories of constitutional interpretation must be reconciled with the general theory of the way linguistic communication works that has been developed in the philosophy of language and theoretical linguistics.
The first problem with such a claim is that it mistakenly asserts that there is a clear consensus in the philosophy of language about how to approach issues of meaning. This statement is clearly false. Philosophers remain deeply divided over these types of questions. Even if one assumes that some variant of Gricean pragmatics (the model Solum favors) is the correct theory to understand constitutional communication, Solum’s adaptation of Gricean ideas is questionable at best, and arguably is simply wrong-headed. The claim that constitutional communication is just another form of ordinary communication and must conform to the models used to comprehend ordinary language seems equally problematic. There are many forms of communication that do not conform to the rules governing ordinary language, for example, poetry, politics, and oratory. (Indeed the very idea of a universal model of ordinary communication that transcends boundaries of time, space, and place itself seems deeply ethnocentric and has been challenged by many anthropologists.)
The final problem with Solum’s model stems from his rendering of the current state of linguistic theory. Solum appears to have ignored the entire sub-fields of socio-linguistics and linguistic anthropology. Rather than support his theory, empirical work in these two fields undermines virtually every one of Solum’s assumptions and claims about how language works. Indeed, if one looks at Solum’s model it clearly violates some of the most basic research protocols in these sub-fields by assuming the existence of a broad consensus on linguistic matters and ignoring the existence of rival speech communities within the dominant linguistic community under examination -- Founding era America. Although English speakers in America in 1788 may have been part of the same linguistic community, they were not all members of the same speech community. Indeed, the degree of linguistic consensus Solum posits for post-Revolutionary era America exceeds anything linguistic anthropologists have ever documented in decades of field research. Solum’s theory is really a form of American exceptionalism on steroids. Such a consensus model is not only hard to reconcile with the empirical evidence gathered by anthropologists about linguistic diversity in virtually every complex literate society, it does not fit the available historical evidence about Founding era constitutional culture. The Founding era was not characterized by consensus, but was defined by profound conflicts over the meaning of constitutional terms, constitutional interpretive methods, and constitutional aspirations. New originalists, including Solum have never grasped this basic fact which historians demonstrated decades ago.
The power of new originalism does not stem from its ideas, which are banal, but from the resources and vast reach of “the originalism industrial complex,” the vast inter-locking network of right-wing thing tanks, foundations, blogs, and organizations such as the Federalist Society, which have tirelessly championed new originalism and thereby inflated the intellectual significance of this theory. (Although mostly championed by the right, a few wayward liberals have embraced the new originalism, but this development has had little impact apart from generating more tedious law review articles and providing additional support for the cause of gun rights in the case of McDonald v. City of Chicago.) Indeed, as the D.C. gun case, District of Columbia v. Heller makes clear, the new originalism, has made it easier, not more difficult, for judges to cover their activist agendas behind a historical patina.
In the wake of recent Supreme Court decisions on the Affordable Care Act and marriage equality, right wing pundits and legal academics have stepped up the call to appoint new originalist judges to the Supreme Court. While liberals may wish to play the originalism game when necessary for strategic reasons, it is naïve to think that doing so is anything but an opportunistic exercise in left-leaning law office history. The simple fact is new originalism has never been a neutral scholarly methodology it has always been an ideological fantasy. While there is nothing wrong with indulging oneself in a bit of fantasy now and again, confusing the line between fantasy and reality is a serious problem. Even if originalism were done with historical rigor (which may be impossible or even a contradiction in terms) the best it could ever hope to achieve would be to force us to take sides in the Founding era’s own debates over constitutional meaning.
It is time to abandon the simplistic consensus history that continues to feed originalist fantasies. The time has surely arrived to sweep originalism onto the dust heap of failed historical ideologies.