“Law School Originalism” and “Movement Originalism”

December 7th, 2011

Very interesting post from Ken Kersch about the disconnect between originalism in academic circles and the originalism in popular conservative social movements.

Most of the discussion of originalism as an interpretive method is part of a professionalized debate amongst law-school-based normative constitutional theorists. But, of course, originalism is also enormously important as a strain of the constitutional politics of the conservative movement, where it is used to help forge movement identities and motivate political participation. As it lives in movement politics, there are important strains of originalism that operate on a different axis entirely from that orientating (most) legal academics.

One of the most influential of these is what I will call “Goldilocks Originalism.” Conservative “Goldilocks” originalists do not orient themselves (in the first instance) in opposition to “living constitutionalists,” but rather in opposition to secularist, positivist, relativist, liberals and progressives. To these movement originalists, the fatal flaw of their antagonists is not that their constitutional theory leaves judges, in ruling in cases, unrestrained in imposing their politics rather than following the law (though Goldilocks originalists certainly believe that to be the case, and often say so), but rather that that the constitutional theory of their opponents severs the tie between our perpetually besieged nation and the only anchor that will truly hold — the belief in (a Christian, or Judeo-Christian) God. In this, as they see it, the Founders, and the Founders’ Constitution, are squarely on their side.

The axis of opposition constructed by the conservative movement between those who revere the Founder’s (God-anchored) Constitution, and the secular, relativist, progressives is omnipresent on the contemporary political Right — at the grassroots, to be sure, but also in a scholarly literature, not written, for the most part, by law professors, but rather by theologians and political theorists. There are three wellsprings of this vein of conservative originalist scholarship: 1) Evangelical Christianity; 2) Catholic Natural Law; and 3) Straussianism. Indeed, a highly ideological originalism that girds itself for battle against Godless secularism and relativism is what holds these three groups – which, historically, had long often been at each other’s throats – together, as compatriots in an effective political coalition.

These social movement actors — popular and scholarly — are more than capable of spinning this constitutional outlook as “originalism,” which, in some sense, it is. But this form of movement originalism is very different from the legal originalism that law professors typically debate. That said, law school originalism and this movement-based Goldilocks Originalism buttress each other. Each has played a major role in the ascendency of contemporary constitutional conservatism.

Goldilocks Originalism emphasizing the degree to which, properly understood, the U.S. Constitution strikes the perfect balance between Reason and Revelation, doesn’t get much attention in the law schools. But, if we want to understand contemporary American constitutionalism, I think it is a least half the story… and maybe more.

I’ve often wondered about this as I watch Tea Partiers wax nostalgically about what the Framers believed, and how this supports their vision of society.  Even if their understandings of the history and original understanding of the Constitution is flawed, I don’t think it matters to the extent that what they are preaching is what Kersh refers to as movement originalism. A theory adopted by social conservatives about, say, the Establishment Clause, need not have the same level of support that would be needed to make it through the halls of academia. I’m not sure that it matters much. If it doesn’t matter, then what does this say about law school originalism, which provides, at best, some kind of foundation or groundwork for movement originalism. I need to go back and give social movements some thoughts. I was big on it a few years ago with the Constitution in 2020 deal, but now it seems like everyone (Balkin included) is turning to originalism.