One of the standard distinctions these days is between the old originalism and new originalism.
Last week, I posted a couple of pieces that discussed a recent scholarly article. A couple of commentators wrote that the posts were a bit difficult to understand, so I thought I would discuss some of the ideas that underlay the posts.
One of the significant issues within originalist scholarship is how originalist theory has changed over time. It has been assumed that originalists writing in the 1960s – 1980s exhibited a certain pattern of arguments and positions, and that originalists since that time have exhibited a different pattern. The question is how these two positions have differed.
The people writing in first period mainly included Raoul Berger, Robert Bork, William Rehnquist and Lino Graglia.
The people writing in the second period are a much more numerous group. If we just focus on those who write about originalist theory (as opposed to those who do originalism generally), then some of those people include Larry Alexander, Jack Balkin, Randy Barnett, Gary Lawson, John McGinnis, Larry Solum, Keith Whittington, and myself.
One transitional figure of immense importance is Justice Scalia, who started publishing material about originalism in the middle 1980s.
What then are the importance differences between the scholarship in these two periods? Since some people writing today exhibit strong similarities with people writing in the earlier period, we should recognize that there will be exceptions to the descriptions. We are looking for dominant patterns, not patterns that are universally followed.
(This three part post addresses the new article on Originalism by Berman and Toh. In my first post on this article, I argued that the New Originalism is not primarily concerned with theories of law. Here I move on to Berman and Toh’s discussion of the old originalism.)
Berman and Toh also claim that the old originalists were mainly concerned with theories of adjudication rather than theories of law. Berman and Toh assert that Bork, Meese and Scalia are all focused on constraining judges rather than about the law.
But this claim is also problematic. To begin, Berman and Toh admit that Raoul Berger – perhaps the oldest of the old originalists – had a theory of law. But Bork also (in the Tempting of America) argued that the Constitution was law (and therefore could only be changed by legal procedures). In fact, that might have been his principal argument.
Even Meese in a short speech to which Berman and Tod refer, founds his argument on the fact that the Constitution is law. It is true that he uses that as an argument for why judges are bound by that law, but the basis of his argument is that the Constitution is law.
In addition, old originalist Lino Graglia also has a theory of the Constitution as law, as Berman and Toh admit.
Recently, Mitch Berman and Kevin Toh have published an article entitled “On What Distinguishes New Originalism from Old: A Jurisprudential Take.” While I don’t know Toh’s work, Berman is a well respected scholar who is a critic of originalism, having penned a widely read article entitled “Originalism is Bunk.” I like Mitch, but I have serious concerns about this new article and so I thought I would write a couple of posts about it.
The article covers a lot of ground in relatively brief space and is quite dense, but its main points can be summarized. A common theme in originalist scholarship is to draw a distinction between the old and the new originalism. The most common distinction is that the old originalism advocated original intent and the new originalism supports original public meaning. Berman and Toh argue instead that the old originalism focused on theories of adjudication – that is, how judges should decide cases – whereas the new originalism is concerned with theories of law – that is, how the law of the Constitution should be understood.
Both aspects of this claim are interesting and the assertion about the new originalism seems novel. Yet, in both cases, I think the claims are mistaken. Finally, Berman and Toh also discuss the theory that John McGinnis and I defend in our new book. I also believe that Berman and Toh mischaracterize that theory.
The New Originalism
Let me start with the Berman and Toh claim that the new originalism is defined by its focus on theories of law. This is a startling claim. While Berman has in his own work been interested in such theories, that is not how new originalist theories have been understood. Nor, in my opinion, is that what such theories are about.