Washington Monthly - September/October 2024 - 124

for Justice-all aim at affecting the
struggle for the public mind. The authors
seek to persuade nonlawyers that
originalism's necromancy is not the only
way to read the Constitution-or even,
indeed, a valid way to decide cases at all.
The controversy over originalism is
not precisely a struggle of ideas as such.
Originalism represents the use of political
power to force others to adopt prescribed
ideas; it uses financial and political
carrots (and a few sticks), far more
than argument or persuasion, to impose
its new orthodoxy. That brute force version
of legal theory is why bench and bar
today cannot debate the simplest point
of constitutional law without engaging
in various forms of stylized speculation
about the mental processes of the dead.
As currently practiced in the United
States, originalism is the product and instrument
of power far more than of disinterested
learning and legal principle.
Judges may discuss and cite " originalist "
academic work, or may deploy
in their opinions their own ideas about
and practice and fear it-is its current
utility, the way we respond to questionable
claims of legal authority can be
quite literally a matter of life or death.
The authors of these books zero in on
the question originalists have yet to answer
fully: How do we the living know
what a group of long-dead white men
thought? And even if we could know
what was in their minds, why should we
bloody well care? Does pretending to be
helpless agents of Golden Age prophets
make our lives better? Is it possible that
the claims originalists make, and their
inescapably retrograde implications for
politics and law, are a complicated nightmare
from which we can awake?
Not to hide the ball, I think the answer
is yes, and so do the authors of
these books.
W
e can deal first with the organized
aspect of originalism:
the masThe
struggle to characterize
originalism in the public
mind is the legal struggle
of our time. And, since
what matters about law is
its current utility, the way
sive academic enterprise-the powerful
institutes at think tanks and universities,
the dozens of annual symposia,
conferences, festschrifts,
monographs, and essay
collections that celebrate
new " discoveries " either
in the correct originalist
application of constitutional
doctrine or in
the proper methodology
for making such discoveries,
and that
in the
we respond to questionable
claims of legal authority
can be quite literally a
matter of life or death.
what originalism means-but they are
not using the term the way lawyers are
taught to use facts or precedent. Judges
use the claims of originalists as a rhetorical
facade to hide their own preferences
about how the U.S. should be governed.
So the struggle to characterize originalism
in the public mind is the legal
struggle of our time. And, since what
matters about law-the reason we study
124 September/October 2024
process suggest sweeping
changes in the ways
in which Americans live
today. Conferences and
symposia on the subject
abound, and countless
tenure grants and endowed
chairs have been
secured by those who
skillfully deploy its intellectual engines.
This growth of the originalist oncampus
octopus is not the product of
chance. A long and growing list of law
schools and dedicated think tanks bespeaks
the generosity of wealthy donors
eager to roll back this or that aspect of
the 20th century's constitutional revolution.
Donor money helped establish,
and continues to influence, George Mason
University's law school (renamed in
2016 the Antonin Scalia Law School); it
has heavily influenced teaching and hiring
at Catholic University and Notre
Dame and other law schools; it generously
funds the Center for the Study of
Constitutional Originalism at the University
of San Diego School of Law, the
Edwin Meese III Center for Legal and
Judicial Studies at the Heritage Foundation,
and the Claremont Institute for
Constitutional
Jurisprudence
(whose
counsel was the now-disbarred John
Eastman)-a list that is by no means
exhaustive. There are, needless to say,
no comparably wealthy centers for legal
pragmatism, labor rights, or critical
race theory; over time, money and power
bend the arc of legal theory.
The fecundity of this branch of the
movement is astounding. As long ago
as 2011, Lawrence Solum, now a professor
at the University of Virginia School
of Law, provided a taxonomy of originalist
theories that included no fewer than,
by my count, seven strands- " original
intention, "
" original public meaning, " " original application, "
and " original methods " originalism;
" living originalism " ; and " the
new new originalism. "
Some of these new versions result
from moments when the central claim
of the movement-that decisions in the
past by the dead can and should bind the
living in the present-has been challenged
and seemingly refuted. For example,
Ed Meese's claim that the " original
intent " of the Framers binds us today
quickly ran up against the unanswerable
objection that we cannot know the intentions
of the dead; this led to the notion
of " original understanding, " which
foundered on the similar insight that we
can't know the understanding of those
who ratified the Constitution any more
than the intentions of those who drafted
it. This sparked various claims for
new and different originalist methods-
using the " original methods " the Founders
would have used to reconstruct
a meaning, or creating an imaginary
founding mentality to correct for the alleged
political ignorance of actual people
in the past. The movement survives each
" original understanding, "
Washington Monthly - September/October 2024

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