More on the end of originalism

Jack Balkin disagrees with my prediction that originalism will fade away. He makes two arguments, albeit divided in five categories.

Originalism will survive as “a common language for political conservatives to talk about their constitutional values” (arguments 1 and 5)

Originalism will decline first in law schools, as liberal constitutional law professors—who overwhelmingly dominate the field—no longer feel the need to engage with originalism, because it no longer plays a role in Supreme Court decisionmaking even as rhetoric. As they stop writing about it, originalism will move back from “on the wall” to “off the wall.” Law review editors will stop taking it seriously, and publication of originalist scholarship will decline. Conservative scholars will look elsewhere for inspiration. If originalism survives in political discourse, it will survive only as a code word (like “strict constructionism”).

Jack also argues that the cultural importance of founder worship ensures that originalism will survive as a political force. However, I don’t think the two have much to do with each other. Founder worship is a term for an American mythology that is only remotely related to the founders’ actual views. The modern-day political role of founder worship determines the content of that mythology. Originalism, if undertaken sincerely, undermines mythology, as all serious history does. The obscure and complex origin of the American state, and its remoteness to present-day realities, was always a weakness of originalism, not a strength.

Originalism as a comprehensive theory of constitutional interpretation may disappear, but originalist arguments will survive (including the tactical use of originalism to overturn precedents) (arguments 2, 3, and 4)

This I agree with, but only because the text of the Constitution has always played a role in constitutional decisionmaking except when swamped by inconsistent precedents. Jack also thinks that justices use originalist rhetoric to overturn precedents that they don’t like. That’s all fine. I wasn’t talking about rhetoric; I was talking about practice or, at a minimum, sincere reliance on originalist methods. Originalism became a thing only because Justice Scalia and his academic followers believed that originalism was more than a rhetorical trope. It was this claim that energized and inspired the conservative legal movement—the claim that the constitution, properly understood, actually embodied conservative values. As this claim loses its influence over judicial decisionmaking, the conservative legal movement will look elsewhere for a unifying ideology.