After oral arguments in McDonald v. Chicago, I argued that Justice Scalia jumped the originalism shark. I even co-authored an Op-Ed questioning if Justice Scalia has abandoned originalism. Though, after reading a recent dialectic between Jack Balkin and Gerard Maglioca, and Steve Calabresi’s new article arguing that gender discrimination is banned by the 14th Amendment, I have to wonder whether originalism, as a jurisprudence, and not just its faint-hearted adherents, has jumped the shark.
Gerard sums it up nicely:
Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack defends the Court’s abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist.
So has originalism jumped the shark if every claim is justified by originalism?
Jack expresses the concern succinctly, but dismisses it:
Perhaps Gerard is worried that everyone someday will claim to be an originalist and then originalism will mean nothing. I can see why *originalists* might be concerned at this state of affairs, but this should hardly trouble a non-originalist. Indeed, one would think that many non-originalists would be pleased.
Gerard cites Karlan who has written about genericide:
The answer draws from Pam Karlan’s observation that originalism is undergoing a form of genericide. In trademark law, a brand becomes generic if it comes to refer to the class of goods itself (e.g., aspirin used to be a mark for the product and now just is the product). That’s harmful primarily to the brand owner that loses its powerful trademark rights, but it could also be harmful to the public by robbing it of a clear differentiation between products. (Indeed, courts have been hesitant in recent years to declare an established mark generic.)
Personally, I think that there is considerable value in retaining a sharp distinction between constitutional theories (Practice is a different matter, since courts almost never use a consistent theory.) It just seems to me that once anything can be labelled as originalist, then that term is no longer useful and may just obscure the truth.
Gerard, picking up on Jack’s note that originalism is not like toothpaste, writes that it is like toothpaste:
Indeed, originalism may be the most powerful brand ever developed by constitutional theory, which explains why it is being embraced by so many and why it is probably inevitable that it will lose its distinctiveness.
Andrew Koppelman relatedly writes:
The recent exchange over originalism between Gerard Magliocca and Jack Balkin made me think again about what is distinctive about originalism. I’d like to suggest that originalism is a distinctive rhetorical strategy, one that somehow connects the proposed course of action, judicial or otherwise, with the revered framers of the Constitution. This is not just generic constitutional argument. It is a distinctive modality of constitutional interpretation. Its function is to connect our present course of action with the project of the framers. Originalist argument is any argument that aims to persuade you that this kind of continuity is possible. . . .
Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification. I do not intend to be pejorative when I say that originalist argument is a kind of constitutional rhetoric, connecting us with the past, constructing a narrative of national identity. Persuasive advocacy is an honorable undertaking. It can never be illegitimate to call your audience’s attention to something that they care about, or ought to care about, such as “your father would have been appalled by what you are proposing to do.”
This is about right but I don’t know that it’s limited to originalism. Since time immemorial lawyers have couched their arguments in what people a long time ago did. Magna carta, by itself did little, but english lawyers transformed it centuries later into this great charter where so many rights were formed. There is nothing new under the sun, right?