Legal Conservatives Now Want to Move Beyond Originalism

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Which is a very fair point, and think that confusion over original intent has helped to precipitate some of these divisions. I do think though that original meaning is, in general, the mainstream originalist doctrine, though. You are right to say that it is basically textualism applied to the Constitution, but I don't think that means it's not originalism. I think Scalia basically argued this pretty much explicitly from time to time, basically saying originalism and textualism were two sides of the same judicial philosophy.

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Which is a very fair point, and think that confusion over original intent has helped to precipitate some of these divisions. I do think though that original meaning is, in general, the mainstream originalist doctrine, though. You are right to say that it is basically textualism applied to the Constitution, but I don't think that means it's not originalism. I think Scalia basically argued this pretty much explicitly from time to time, basically saying originalism and textualism were two sides of the same judicial philosophy.

I have always thought a natural law approach that errs toward the broad side rather than narrow was more consistent with the goal of the Bill of Rights and Reconstruction Amendments. 

I still oppose stuff like Lochner and Roe though. 

I think this is generally where many judicial conservatives will go if originalism is challenged, at least those who lean to the libertarian side. Generally I think we will see a greater focus on the divide between presumption of Constitutionality originalism (which I think you can see in more orthodox originalist scholars like Bork and Scalia) v presumption of liberty originalism (which is sort of unorthodox right now, but is most associated with Randy Barnett). Over time, I think conservative jurists who want to move away from originalism will either adopt a more moderate form of Vermeule's conservatism or a moderated natural rights approach, like the one you outlined.

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

     While the 9th Amendment is necessary as a catch-all to help protect against unforeseen things that are logically natural rights simply being dismissed on account of non-enumeration, the inherent risk is that people will read into it whatever they want to find in it. Given that the trend in recent decades has been towards a reformulation of originalism that many will see (and perhaps not incorrectly) as a weakening of its previous stance, I can see the desire for a reaction against originalism from the right.

I agree that it is logical that the right is looking for an alternative to originalism, but I think it is simply because originalism requires them to reach decisions they sometimes dislike, as as the case for Scalia in Texas v. Johnson, or really even someone like Holmes in Lochner (though I wouldn't say Holmes was an originalist, but he made many arguments that originalists today use).