Paul L. Caron
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Sunday, March 14, 2021

Nonlegal Scholars Who Attack Originalism As Biblical Fundamentalism Fail To Understand That The Constitution Is Both Fallible And Authoritative

Following up on last Sunday's post, Originalism’s Original Sin: The Legal Philosophy Cloaks Its Theocratic Impulses In Secular Garb:  Chronicle of Higher Education:  Humanists, Want to Attack Originalism? Learn About Law, by Paul Gowder Northwestern) & Noah Feldman (Harvard):

Earlier this month, Adam Shapiro argued in the Review that constitutional originalism should be understood as a version of inerrantist biblical fundamentalism. The two essays here, by the constitutional-law professors Paul Gowder and Noah Feldman, respectively, sharply disagree with that view — and continue a debate playing out in our pages since October, when Amy Coney Barrett was confirmed to the Supreme Court [Scholars Who Attack ‘Originalism’ Should Know What It Means; Historians and Literature Profs Without Real Knowledge Are Weighing in on Legal Debates].

Paul Gowder (Northwestern), Originalism Has Many Problems. Its Imagined Religious Origin Is Not Among Them.:

Adam Shapiro’s unfortunate effort to argue against “the idea that only legal schools can competently critique originalism” actually serves as evidence for the opposite point. His critique of originalism is rooted in a misunderstanding of why lawyers operate with laws written down in texts. A critic with legal training would have been able to address the debate about originalism as a debate about textual interpretation and about the values our legal system seeks to serve, rather than making a facile effort to assimilate the interpretive method to some kind of theocracy. ...

At most, Shapiro succeeds in convincing us that both some kinds of readers of the Christian Bible and some kinds of readers of the United States Constitution treat their respective texts as authoritative, and hence refuse to set their own wills above what they believe to be the best readings of their texts, where those readings have something to do with some kind of meaning attributed to some authoritative author (God) or ratifier (the People of the United States). That seems to be what we are meant to take from his quotes from Justices Neil M. Gorsuch and Amy Coney Barrett, who emphasize their unwillingness to substitute their own will for what they believe the text of the Constitution requires.

Those of us who are trained in the distinctive methods and goals of the law understand that no religious commitments are necessary to make sense of Barrett’s and Gorsuch’s deference to text. One characteristic feature of law is that it is made up of authoritative texts, whether those texts are constitutions, statutes passed by some legislature, or even judicial precedents. And long before the United States Constitution was ever drafted or the Christian Reconstructionist movement ever began, lawyers and judges were appealing to the authority of texts rather than their own personal judgments to justify their decisions. ...

 Shapiro offers up a false binary: Either the Constitution is a religious text, “like Leviticus,” that is to be treated as infallible revelation or it is “like Euclid’s Elements — a canonical but not infallible text that can be checked against other kinds of authority.” For originalist as for most nonoriginalist lawyers, the Constitution is neither. It is fallible, and it is, of course, “morally imperfect,” but, because it is also our fundamental law, it cannot be “checked against other kinds of authority.” The whole point of having fundamental law is that it is where the authoritative buck stops. But because Shapiro will not admit of a text that can be both authoritative and fallible, he hears judges express their deference to such a text, and he thinks he’s listening to religion, when, really, what he’s listening to is law. ...

Scholars of religion may well have something to offer to the debate over originalism. Because lawyers and theologians share the task of interpreting authoritative texts, I can easily believe that religious scholars know something about how that practice ought to be done that lawyers do not yet understand. But such a contribution can be made only on the basis of some effort to first take seriously what originalists actually believe and to understand how those beliefs arise from the legal enterprise itself.

Noah Feldman (Harvard), Guilt by Association Is Not an Argument:

Modern originalism is a praxis of constitutional interpretation twice-born at the Supreme Court. First deployed by Justice Hugo Black as a liberal, rights-expanding approach in his dissent in Adamson v. California (1947), the method won few admirers until it began to be deployed to conservative ends by Justices Antonin Scalia and Clarence Thomas in the 1980s and ‘90s. Today, partly through the influence of the Federalist Society and the appointment of a majority of conservative justices, originalism has come to be treated as the dominant approach to constitutional questions on the current court.

In his masterpiece, Constitutional Faith (Princeton University Press, 1989; second edition with a renunciatory afterword, 2011), the scholar Sanford Levinson proposed that Black’s originalism may have been informed by the distinctively Protestant method of biblical interpretation that Black himself used as a volunteer Baptist Sunday-school teacher for two decades in Birmingham, Ala. This comparison, as I wrote in 2010, relies on “an overlap between the Protestant idea that the Bible may be interpreted by any individual without the mediating authority of the church and the originalist idea that the meaning of the Constitution may be ascertained without reference to binding precedent.” Levinson, who borrowed the title of his book from Black’s book, A Constitutional Faith (Knopf, 1968), contrasted this “Protestant” approach with what he called a “Catholic” approach to constitutional interpretation that draws heavily on authoritative interpretations by previous courts, which stand roughly in the place occupied by the Church Fathers in one tradition of Catholic biblical interpretation.

Note that biblical inerrancy was no part of Levinson’s analogy — nor does the notion of constitutional inerrancy find any place among contemporary theorists of the praxis of originalism, many (not all) of whom are committed Catholics like Scalia and Thomas. Indeed, contemporary originalism was married by Scalia to the philosophical theory of legal positivism, which pointedly takes no view at all on the morality of legal pronouncements. Originalists, by their own account, first engage in the historian of ideas’ task of ascertaining what contemporaries of a constitutional text would have understood it to mean; then seek to apply that meaning to concrete constitutional cases before the courts. The whole point of the enterprise is to remain neutral on the moral worth of what the Constitution demands: According to this approach, the Constitution is positive law, and must be applied without reference to whether its original meaning was morally right or morally wrong. ...

Originalism, whether that of Black or of Scalia and Thomas, was devised to de-moralize constitutional interpretation and constrain judges. The Constitution that originalists interpret is meant to be binding, by their lights, not because it is inerrant or inspired, but because it is positive law.

https://taxprof.typepad.com/taxprof_blog/2021/03/nonlegal-scholars-who-attack-originalism-as-biblical-fundamentalism-fail-to-understand-that-the-cons.html

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