Legal Commentary

That's the provocative claim, at least, that Steven Smith (USanDiego) makes in his new essay on SSRN, That Old-Time Originalism. The soul whose death Jack instigates by his mere presence is originalism. On Smith's view, if Jack and like-minded thinkers are originalists now without sacrificing little or nothing in the "conversion," then that spells trouble for originalists, rather than provides a basis for jubilation because the club of originalists is bigger now.

Indeed, Balkin?s deployment of the distinction between ?expected applications? originalism and the ?text and principle? variety of originalism is little more than a rechristening of the ?concept/conception? analysis offered by Dworkin decades ago, and is used to similar effect. But if Balkin can be an originalist by virtue of favoring interpretation based on the ?principles? contained in constitutional provisions rather than ?expected applications,? there is no apparent reason why Dworkin should not be an originalist by virtue of advocating fidelity to the enactors? ?concepts? rather than their ?conceptions.?

In other words: Uh-oh, Ronnie's part of our club too now. According to Smith,  "the real harm [of such harmony among scholars] is that originalism is no longer available as a distinct approach to further (or at least attempt to further) the worthy purposes, noted above, for which it was devised? namely, constraining courts in history-grounded ways, and preserving the ability of democratic institutions to enact constitutional provisions with relatively definite and fixed meanings. That seems a regrettable loss (even for those who doubt originalism?s ability ultimately to provide what it promises)."   In the last ten years, there has been so much tumult and turmoil (and perhaps progress!) in the field of constitutional method(s) that it's been hard for non-specialists like myself to capture all of its particularities--though Larry Solum's done a great job keeping us abreast of each move on his blog. Smith's essay is a warm, funny and inviting segue to the conversation -- even if what he says will probably irritate some the participants to the conversation which he's interrupting. His conclusion, as I take it, is that people interested in the original understanding of the law are best off with undertheorized agreements to proceed together, and to only go up a level of conceptual abstraction when necessary to resolve practical disputes.

As I see it, there is a problem with such advice: given the capaciousness that Smith suggests describes the current originalism camp--and given that we are all purportedly originalists now--it will be hard to show that it's not pink elephants (or practical disputes) all the way down...a fact I think Smith is alert to by the end of his essay, but perhaps not quite willing to embrace. In any event, Smith's essay is highly worth your time and will give you a good flavor of the current state of play in the field that rightly or wrongly still has a disproportionately large effect on the intellectual life of many law schools.