Jacob Smith ‘23
Staff Editor
“Originalism’s critics have failed to convince America that originalism is a bad idea.” Suggesting that originalism had in a sense never left, Professor Kurt Lash presented evidence from contexts as diverse as McCulloch v. Maryland and the recent debate over former President Trump’s impeachment that it has always been popular to claim the “moral high ground” of adhering to the original meaning of the Constitution. Professor Lash attributed originalism’s survival to the persistence of the idea of popular sovereignty—that the people’s will, as embodied in our Constitution, should be respected.
But Professor Lash’s words also reflected two major threads that pervaded Friday’s symposium. On one hand, commentators recognized that originalism has achieved a historical position of influence in the legal academy and judiciary. But they were also keenly aware of the challenges that originalism faces as they discussed topics related to the subject of the Third Annual Originalism Symposium, “Originalism Under Fire.”
As in prior years, UVA’s Federalist Society chapter hosted last Friday’s symposium, but of course this year’s event was held via Zoom. “I’m proud that our Federalist Society chapter has, despite the challenges posed by the COVID-19 pandemic, continued our tradition of bringing top legal minds to UVA for discussion and debate,” said the symposium’s chairman, Connor Kurtz ’22. The symposium featured professors, judges, and a handful of other commentators— including David Lat, the founding editor of the infamous blog website Above the Law.
Pictured: The panel discussed the different approaches that led the the Bostock opinion. Photo Courtesy of Jacob Smith '23.
One external challenge to originalism comes from the Right. Some readers may not know that there is a Republican school of thought that has an attitude of hostility, or at least wariness, toward originalism. As originalism and the Supreme Court have come under increasing scrutiny, those voices have grown louder. Last year Harvard Professor Adrian Vermeule proposed an alternative to originalism: common-good constitutionalism. Vermeule’s conclusion, as described during the panel by Newsweek Opinion Editor Josh Hammer, is that “we should instead overtly go for substantive and normative conservative outcomes.”
In contrast, the landmark decision Bostock v. Clayton County has stirred debate among adherents of originalism, with some supporting and some opposing Justice Gorsuch’s reasoning. Some of those perspectives were on display in a discussion of “Textualism after Bostock.” Textualism is sometimes considered the statutory analogue of originalism, which is often thought of as a method of constitutional interpretation.
In Bostock, both Justice Gorsuch’s majority opinion and dissenting opinions by Justices Alito and Kavanaugh followed textualist approaches, but they arrived at radically different conclusions. Professor Tara Leigh Grove favored Justice Gorsuch’s approach, which she described as “we focus on the statutory language, and that’s that,” in contrast to the “more flexible textualism” applied by the dissenting justices, which considered factors such as social context and practical consequences. Professor Josh Blackman, in contrast, thought “Justice Gorsuch failed to acknowledge that the Court’s precedents were inconsistent with textualism. “Textualism is apolitical in that it looks to the meaning of a word, as opposed to a question of policy values in a statute,” said Jessie Mann ’23. “It was fascinating to hear the different arguments for how staunch Justice Gorsuch was in his Bostock opinion.”
Popular misconceptions are another challenge faced by originalism. In a discussion of the public perception of originalism, Lat addressed some common misunderstandings. Originalism, at least in its most prominent version, focuses not on the Founders’ intentions but on the Constitution’s original public meaning. Nor does originalism demand strict constructionism or anachronism. The Constitution can be construed “as broadly as necessary” to embrace all it originally meant and its original meaning can be applied to new contexts.
These misconceptions persist. Lat noted that folks on the street tend to think of originalism as “antiquated” and “harsh.” I refer readers to the penultimate episode of Netflix’s A Series of Unfortunate Events, where a pseudo-originalist court requires everyone to wear blindfolds since “justice is blind.” But I think originalism’s biggest challenge is persuading liberal Americans that it is more than a Republican power play. As one of Friday’s panelists noted, perhaps the easiest way to advocate for originalism is to point out cases where it has not favored Repubican outcomes, like Bostock and certain Fourth Amendment opinions authored by Justice Scalia. Still, it is reasonable to expect skepticism to continue so long as the Supreme Court’s originalists are all conservatives.
James Ford ’23 expressed this kind of skepticism, stating that “originalism is just paleo-conservatism with more steps.” Many Democrats agree, if calls for court-packing are any indication. The challenge for the Supreme Court’s originalists is to persuade observers that their methodology truly is non-partisan and to do so at a time when the stakes are higher than ever. In the balance hangs not only originalism’s reputation but also, just maybe, the Supreme Court as we know it.
---
js3hp@virginia.edu