Vol. 30 No. 3 (April 2020) pp. 34-40

ORIGINALISM’S PROMISE: A NATURAL LAW ACCOUNT OF THE AMERICAN CONSTITUTION, by Lee Strang. New York: Cambridge University Press, 2019. 314 pp. Cloth $110.00 ISBN: 978-1108475631. Paper $34.99. ISBN: 978-1108468732.

Reviewed by Whitley Kaufman, Department of Philosophy, University of Massachusetts Lowell. Email: whitley_kaufman@uml.edu.

ORIGINALISM’S PROMISE is an uncompromising defense of the “originalist” school of law, according to which a judge’s duty is to follow the law as written, based on the “original meaning” of the law. It provides a useful summary of the current developments among originalists and the author is well read and well informed (at least on originalist literature) and attempts a new and original defense of originalism based on natural law. The book is amply footnoted and well documented on the topic, addressing numerous current controversies among originalists, and those who are interested in the originalist doctrine will no doubt find it useful. Indeed, it is striking how much diversity and disagreement there is among those who call themselves originalists. The defense of originalism presented in this book is original but, I will argue, unconvincing.

One of the biggest problems with originalism is that it is a slippery doctrine, with a shifting meaning. All too often, originalists defend (as does Strang) a doctrine that amounts to the unsurprising idea that one ought to follow the law as written, following the intentions of the legislature. Put this way, originalism simply is another way of asserting the Rule of Law: that society is governed by laws rather than arbitrary decisions. But if this is all that originalism means, it is simply a truism and not even an interesting doctrine; the only people who would reject it are extremists and anarchists. The problem is that originalists conflate this truistic idea with another idea, one that nonoriginalists reject: that the “original meaning” of all laws is simply a matter of fact out there to be discovered. For nonoriginalists, this is a naïve and unconvincing positivistic assumption; especially when it comes to the Constitution, which is full of highly abstract, ambiguous language (“due process,” “equal protection,” etc.), interpretation is a complex process, involving judgment, discretion, and necessarily value judgments as well, not merely factual determinations. Critics of originalism do not of course reject the Rule of Law nor call for disregarding the Constitution. What they object to about originalism is not merely [*35] the assertion that one ought to follow the law, but rather its implausible portrayal of following the law as merely a mechanical process of historical discovery of the facts.

Unfortunately the classic originalist strategy is all too often to act as if critics are objecting to the truistic version of originalism, when in fact what critics object to is the latter idea that legal interpretation is a neutral, value-free process, entirely determined by the historical evidence. Strang himself engages in this strategy. For him, originalism simply means that a judge should act in “good faith,” take into account the meaning of the law in question, apply that meaning to the facts, and “respond to plausible counterpoints” (p. 96). But who on earth would disagree with that (is he implying that nonoriginalist judges and scholars act in bad faith?). The nonoriginalist can agree with everything Strang says, but insist that originalism is naïve to think that all difficult questions can be settled simply by finding the meaning and applying it to the facts. The real debate is about what the judge should do when the law “runs out.” Unfortunately, Strang (like most originalists) spends far too little time addressing this question, which is the real heart of the debate. To his credit, Strang does recognize that there will always be some indeterminacy, and judges will inevitably have to engage in some “construction” rather than mere interpretation of the law. However, he continually downplays this indeterminacy, saying for instance that this zone of indeterminacy is “relatively small” (p. 83), and that we only need a “modest” amount of construction (p. 66). This is quite unhelpful: what does “relatively small” or “modest” mean? And on what evidence does he base these claims? A nonoriginalist could easily agree that the vast majority of cases are relatively easy, but that there will be a small number of “hard cases” – many of them of profound importance -- that require going beyond original meaning, where the Constitution simply does not give us clear guidance.

One of the striking features of Strang’s defense of originalism is just how much he concedes to his opponents. For him, there will always be cases where the original meaning is “underdetermined” and hence a role for “construction” (i.e. creating new law) as well as merely interpreting existing law (p. 31). He allows that for some Constitutional provisions there is no “coherent original meaning” (p. 214). He makes a place for “contextual enrichment,” a fancy way of saying that there is substantial indeterminacy in the text and interpreters will need to consider such factors as historical context, the larger purposes for which a clause was adopted, and the “broader milieu in which the text was adopted” (p. 35). Strang also concedes the need to go beyond original meaning at times, for instance in retaining nonoriginalist precedents if they promote substantive [*36] justice and promote the common good (p. 123). He concedes the need for the development of a body of Constitutional doctrine, since “original meaning itself resolves few issues” (p. 181). He even recognizes that the Constitution contains moral norms, requiring the interpreter to engage in moral reasoning (p. 214). And he has a long discussion of how the Constitution was designed to accommodate societal change over time. But if this is true, then it seems there is little difference between originalists and nonoriginalists in principle – the real debate comes down rather to concrete applications.

It is thus not surprising that the examples Strang uses of nonoriginalism are in fact hard to distinguish from originalism. Strang refers to the HOME BUILDING case, in which the court rejected the idea of being constrained by the interpretations of the framers, as a nonoriginalist decision. However, the court justified this rejection precisely on the grounds of following the intention behind the Constitution, quoting Marshall: it is “a Constitution intended to endure for ages to come, to be adapted” to future events (p. 20). He also cites the SLAUGHTERHOUSE CASES as an example of nonoriginalism. But that decision explicitly referred to the “purpose” of the 14th Amendment and what was “intended” by the Congress that proposed the amendment and the states that ratified them. Strang admits that even “nonoriginalist” judges claim their decisions are rooted in the Constitution (p. 180), though he appears not to see the problem this fact causes his argument. Especially egregious is his claim that the DRED SCOTT decision, the most notoriously bad decision in the history of the Supreme Court, is an example of nonoriginalism (p. 289). In fact, the very opposite is true. The DRED SCOTT decision was an explicitly originalist decision: it held that blacks “were not intended to be included under the word ‘citizens’ in the Constitution.” One wonders if Strang’s method is simply circular: any case that has an unjust result must be definition be nonoriginalist! In any case, the larger point is that Strang misleadingly presents the debate as if the issue were whether to follow the Constitution, when in fact the real debate is how best to follow the Constitution.

Strang provides two distinct kinds of arguments in favor of originalism. One is the normative defense: he claims that originalism is morally preferable because it promotes social coordination, the common good, and individual rights. Strang claims that given the Constitution aimed at these goals, “original meaning was the only mechanism by which the Framers could communicate” those goals (p. 57). Again this argument it confuses two distinct points: the trivial point that law relies on language and therefore on meaning, versus what is really at issue, whether [*37] originalism provides the most convincing theory of how to interpret law. Thus the argument misses the point; who would deny that the Constitution aims at the common good, or that the Constitution is aimed to communicate its goals to us? But the nonoriginalist claims that the Constitution is written in open-ended language precisely because the Framers wanted to leave future generations room to adapt to new, unforeseen challenges. Nor does Strang provide any good arguments that originalism (in the strong sense) is more likely to achieve these normative goals than other theories. Strang asserts that nonoriginalism would “undermine stability” and might “reduce liberty,” but he provides no evidence for these assertions (p. 172). A nonoriginalist could claim just the opposite: the Constitution has been so successful precisely because it leaves us room to evolve, and the danger of the originalist ideal if actualized would promote excessive rigidity, undermine justice and even threaten the survival of society (the Constitution is not a suicide pact). The long last chapter mostly makes the uncontroversial claim that the Constitution is our central legal authority and that following it promotes the common good. But then it veers off into a gross non sequitur, that nonoriginalism must be wrong since it departs from the meaning of the Constitution. But this is just false. Nonoriginalists do not reject the Constitution, but disagree on how best to interpret it. To dismiss nonoriginalism as not just wrong but even irrational (p. 294) and “unfaithful” to the Constitution (p. 304) as well as having “missed the point” of the Constitution (p. 300), is, to put it mildly, uncharitable – and should have made Strang wonder whether he has properly understood his opponents.

The book presents itself as a natural law defense of originalism (the subtitle is “A Natural Law Account of the American Constitution). Natural law is the idea that there are objective, universal moral principles binding on us independent of human positive law. The idea of a natural law defense of originalism may surprise some people, given that originalism and natural law theory are often viewed as enemies; much of Bork’s THE TEMPTING OF AMERICA is a rant against natural law, precisely because judges can and have used natural law as a reason to depart from the original meaning of the law, or at least to fill in the blanks. In fact, natural law plays a minimal role in Strang’s theory; indeed, he mostly emphasizes the limits of natural law given its abstractness and the need for positive law to provide specific guidance. In the end, natural law serves merely as a way for Strang to emphasize the relatively trivial point that the law aims at the common good.

Strang also uses “virtue ethics” to defend originalism, the moral theory that relies heavily on Aristotle and emphasizes the [*38] development of character as central to ethics. However, Strang provides no good reason to believe that virtue ethics supports originalism as opposed to nonoriginalism (there is a good case to be made for the latter). Nor does he provide any reason to believe that virtue ethics is preferable to any other ethical theory (e.g. deontology) in promoting good judicial behavior (indeed, he does not even mention any other ethical theories, apparently just assuming that virtue ethics is the right moral theory). Strang even suggests that WICKARD (the commerce clause case holding that merely growing wheat counts as interstate commerce, a highly problematic decision) was wrongly decided because the judges lacked ‘virtue’ (p. 153). The claim is strange – exactly what lack of virtue caused them to make this decision?-- and insulting to the justices who decided Wickard, who were doing their best to make a conscientious decision (indeed, they were showing judicial deference to the Congress, itself one of the key virtues that Strang praises). The deeper problem is that the entire argument is circular. The claim that virtue ethics supports originalism is supported only by the prior assumption that a virtuous judge would, of course, be an originalist (not to mention the assumption that nonoriginalists must lack virtuous character!).

Strang also makes a second argument, that originalism better fits our existing practices than does any other theory. This argument would seem to be contradicted by the frequent complaints from originalists (endorsed by Strang himself, p. 23) that our society has abandoned the Constitution; the frequent laments for the “lost” Constitution or the “Constitution in exile” is an admission that originalism does not fit our current practices. But putting that point aside, is there evidence that originalism better fits our practices? Unfortunately, Strang once again resorts to Straw Man arguments, for instance suggesting that the fact that we have a written Constitution which is recognized as the supreme law of the land somehow supports originalism – he even strangely insists that the Constitution “identifies” originalism as the “correct theory of interpretation” (p. 169), whatever that could mean. But every nonoriginalist can agree that the Constitution is the law of the land – and still claim that moral and political reflection is necessary to decide difficult and important cases. Strikingly, Strang never seriously engages with Strauss’ powerful argument (in THE LIVING CONSTITUTION) that nonoriginalism is a far better fit to our practices than is originalism. This is the real sort of debate that this book should engage in but unfortunately does not.

This is a frustrating book, because Strang shows evidence of a capacity for thoughtful and fair-minded analysis, as when he [*38] concedes that both sides had plausible and good faith arguments based on original meaning as to whether the Second Amendment provides an individual right to guns (p. 97) (though by his own argument, if there is not a clear answer then the court should not have exercised its power of judicial review). More than most originalists, he recognizes the central role of human judgment and insists that legal interpretation is not a mechanical process. It is therefore unfortunate that he seems unable for the most part to present more than a caricature of his opponents. Originalists need to recognize that nonoriginalists respect the Rule of Law and the Constitution every bit as much as they do. Only when originalists try to take their opponents’ arguments more seriously can there be a genuine debate on the issues.

One wonders whether the underlying cause of the problem is political polarization. Originalists tend to be conservative and nonoriginalists to be liberal or progressive. True to form, Strang uses his originalist position to justify consistently conservative positions: states’ rights (p. 732), an individual right to guns (p. 83), the death penalty (p. 125), and rejecting the right to same sex marriage (p. 135). At times this devolves into sheer right wing diatribe, as in his flat declaration that ROE v. WADE is “unjust” (p. 138) on the grounds that abortion is obviously wrong. In fact, contrary to Strang, abortion is a complex moral question and there are reasonable moral arguments on both sides. Strang also cites a slew of misleading and refuted studies purporting to show that abortion has harmful effects on woman, and even (outrageously) implies that Planned Parenthood is merely a scam to profit by easily manipulating the “fears” of pregnant women (p. 138) (apparently he does not notice that the anti-abortion strategy of claiming all kinds of physical and psychological harm from abortion might seem to be a more obvious case of manipulating the fears of pregnant women). Strang also manipulates the historical evidence in order to achieve the “original meaning” he seeks – he looks only at the legal situation in 1868, when abortion had become widely restricted. He justifies this choice by the fact that the 14th Amendment due process clause was enacted in 1868 – but in fact Roe relied not just on the 14th Amendment but on the Bill of Rights as well, passed in 1791, a time when abortion was widely permissible in the US. It is this sort of tendency to play fast and loose with the facts that has made nonoriginalists more than a little skeptical of the originalism’s claim to be a neutral, non-political method.

To be fair, this is the weakest moment in a book that is otherwise a more restrained and sober scholarly argument; it may be that his passions got the better of him on this issue. Still, too much of the [*40] book portrays nonoriginalists as if they were moral monsters, scheming to undermine the Constitution and our basic liberties. I suspect that this political divide helps explain why originalists fail to seriously engage with their opponents: that this is really a debate over political ideology rather than over constitutional interpretation (unsurprisingly, Strang blames the politicization of the courts on – what else – nonoriginalism! (p. 305)). It is all too tempting to assume that those who disagree with you must be doing so in bad faith. Alas, political polarization is endemic in our society, and there seems little chance of it going away any time soon.

© Copyright 2020 by the author, Whitley Kaufman.