Originalism class 9: between phony and naive

In our last class, we discussed Jack Balkin’s paper, Why Are Americans Originalist?, which I interpret as a sly debunking exercise. Balkin’s most interesting argument is that the turn to originalism in the 1980s was akin to Martin Luther’s repudiation of the Catholic Church’s monopoly over Biblical interpretation, with the Supreme Court playing the role of the Church. (You might think of the habit among libertarians of carrying around a pocket-sized constitution as the modern version of biblical translation into the common language.) Originalism is a political strategy that became attractive because the founding-era meaning of the text coincided (very roughly) with the political goals of conservatives while at the same time appealing more broadly because of the patriotic, anti-elitist message that the Constitution contains the wisdom of the founders and we can all read the Constitution for ourselves. The students were pretty skeptical.

But I do sympathize with conservatives of the 1970s and 1980s who saw the Warren Court as an ideological apparatus, and were contemptuous of the law professors at the time who sought to rationalize its liberal holdings with phony constitutional theories. The problem was that the alternative they came up with rests on a mythical self-image, or at least encourages people to treat mythology as fact, with all kinds of weird consequences for constitutional law. It’s as if the Germans repudiated their Basic Law and decided to derive constitutional norms from the myths of the Nibelungen. Or–to be fairer–from whatever archaeological research might reveal about the customs of Germanic tribes at the time of Tacitus.

We polled students again–they polarized, which makes sense since they are more informed about what originalism means now than they were at the start of the course. But it bodes ill for the project of originalism itself since originalism can prevail only if that is what the people want.