Michael Dorf on the Social Practice of Originalism

Michael Dorf has an interesting blog post recounting some of his Constitution Day remarks:

Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way. . . . [N]o one disputes that it would be possible — as a matter of brute fact — for Americans to let go of the Constitution and replace it with something else. Put in terms we owe largely to H.L.A. Hart, what makes the Constitution the law around here is the social convention that we treat it as the law. The Constitution is like paper money. It has no inherent value. Its value derives from everybody’s willingness to treat it as valuable.

What’s true of the Constitution is also true about efforts to discern the Constitution’s meaning. Originalists — of all stripes — sometimes talk as though their method for interpreting and construing the Constitution is simply the only honest way to do the job. Yet everything depends on what that job is, and that is ultimately determined by the same sorts of conventions that make the Constitution law in the first place. And those conventions are themselves a product of the political system.

Originalism provides a nice illustration. . . .

Dorf goes on to argue that “originalism’s future looks dim” as a positive matter, because it is connected to the Republican Party and the Republican Party’s future looks dim, as does originalism’s place within it.

I pretty much agree with the blockquoted part of Dorf’s remarks — the Constitution is law only because of our shared social convention that it is law, and it makes sense to look at interpretive methodologies in a similar way. But I am more optimistic about originalism’s place in our shared social convention.

As a matter of American legal practice, originalism is pretty firmly ensconced as at least one legitimate methodology among others. That doesn’t mean all or even most judges are originalists — just that originalism is thought to be relevant to constitutional adjudication. If there is no precedent or firmly-ensconced practice on point, the original meaning of a provision is often quite important. And even if there is a precedent or practice, the further afield it is from the original meaning, the harder it is to retain or expand that practice — ceteris paribus.

Moreover, the important developments in originalism in the past decade or two have made originalism easier to reconcile with many of our modern legal conventions. So-called “new originalists” now have more sophisticated theories for accounting for changed historical circumstances, precedent, and linguistic indeterminacy. The upshot is that it’s easier for originalists to say that many parts of our modern practice are “not wrong” or “not anti-originalist.” New originalism also seems to be less partisan, as evidenced by scholars like Jack Balkin and groups like the Constitutional Accountability Center.

Obviously, time will tell on this question, and both Dorf and I may be biased and think that what we want to happen in the future is also what will likely happen in the future. But I think there’s good reason to think that originalism will be part of our law for a while to come.