The two faces of originalism

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Scholars of various persuasions have harshly denounced John Eastman while admitting it sotto voce that he might have a half point.

Until recently, originalist legal scholar John Eastman was an honorary member of the Federalist Society. He headed the Society’s Separation of Powers practice group and was a frequent speaker at their meetings. Leonard Leo, co-chair of the Federalist Society, donated to Eastman’s campaign for the Attorney Generalship of California in 2010.

Things changed after Eastman recommended Donald Trump’s attempt to contest the results of the 2020 presidential election. Eastman is no longer chair of the Federalist Society’s practice group, and according to his employer, the Claremont Institute, he is barred from discussing “fundamental constitutional issues” at Society meetings.

The Federalist Society’s longstanding endorsement of Eastman was just one element of its effort to promote originalist principles. Officially, the Federalist Society takes no position on originalism. In practice, it has done more than any other organization to promote this philosophy. Through their work, the idea that constitutional interpretation should exclude moral issues and political considerations and focus solely on the original meaning of the text has become dominant on the right.

Eastman is now a target of the January 6th House Committee. Given the partisan composition of this committee, this is hardly surprising. Eastman’s treatment by the Federalist Society is more striking. Eastman arrived at his radical conclusions not by deviating from originalist methods but by following them with remarkable consistency. This does not necessarily justify his conclusions, which many originalists disagree with. But it reveals the deep tensions that threaten to tear the movement apart.

Originalism has two faces, moderate and radical, and opens up divergent political possibilities. Because originalism is a face-neutral method that promises to resolve contentious political issues by referring to the text rather than delving into substantive questions of right and wrong, it can appeal to moderates who fear overt clashes of interests and views.

Last year I heard an originalist scholar say he hoped the Supreme Court wouldn’t topple Roe v. calfbecause it would jeopardize Republican hopes of winning the 2020 Midterms. He is an originalist of the moderate trend, and he is far from alone. Constitutional law is a matter for the elite. Those who devote themselves to it share the interests and prejudices of their class. Invested in the current balance of power, they are likely to view certain things as moderate (e.g. reading transgenderism into the Civil Rights Act) and other things unthinkably radical (e.g. tipping over Roe v. calf).

Despite the moderation of many of its practitioners, originalism can be a radical philosophy. The insistence on the original meaning of the written constitution can profoundly undermine the informal, unwritten constitution (“norms”) that govern our politics. My most vivid encounter with radical originalism came when I attended a Claremont Institute seminar. It featured a debate between two originalist scholars, one of whom argued that citizenship’s birthright is not guaranteed by the constitution. This seemed to me an implausible claim. I had internalized the idea that birthright citizenship was fundamental to the American polity. But as the two men argued, I was surprised to find that the critic of birthright citizenship was able to amass a great deal of evidence, some of which his opponent had to admit. For the first time I saw how destabilizing originalism can be.

I had this disturbing experience a second time while reading Eastman’s book debate on the 2020 election results with Joseph Bessette, a government professor emeritus at Claremont McKenna College. Their disagreement revolves around whether the vice president should just open the ballots, which are then counted by Congress, or whether he should also count them. Whoever counts the votes appears to have the right to determine which votes are counted and which are overturned in the event of a dispute.

Eastman cites evidence showing that originalists and other legal scholars in academic and historical debates have admitted the validity of an argument very similar to his own. Bessette vigorously argues against Eastman, but even Bessette’s criticism suggests that there is more to Eastman’s argument than I previously thought. Scholars of various persuasions have harshly denounced Eastman while admitting it sotto voce that he might have a half point. (In an article published by the Atlantic in October, the liberal legal scholar Laurence Tribe cryptically recommended that something like the Eastman proposal could be followed by Kamala Harris in 2024.)

Reading Eastman and Bessette’s arguments left me unsure whether either side was correct. Behind the more technical questions remains a fundamental mystery. On the one hand, it seems absurd that the vice president, who often runs as a presidential candidate, should be able to judge his own case. On the other hand, delegating that power to Congress risks legislative dominance by the executive branch.

However one weighs these things, it is undeniable that Eastman adhered to methods that were widely accepted by the men who shunned him. One can view Eastman’s proposal as wholly impractical or deeply immoral. One can accuse him of a flawed constitutional theory or a twisted view of politics. But no one who looks seriously at his arguments can doubt that they are original. Eastman has suffered an intellectual betrayal that challenges not only the Federal Society’s claim to be apolitical, but also originalism’s claim to neutrality.

Originalists can and will discard their methods if they lead to undesirable results. This may not matter in practical terms if all originalists would agree. But on issues well beyond the 2020 election, originalism is torn between two tendencies. On one side are those who see originalism as a philosophy of moderation. On the other hand, those who understand their radical possibilities. Like Janus, it has two faces and stands on the cusp of peace and war.





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