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Phony originalism and the Establishment Clause

By Jack M. Balkin

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation that happen to conveniently coincide with the political needs of the Republican coalition. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

These claims are developed in a new paper, ?Phony Originalism and the Establishment Clause,? which I presented last week at a conference on originalism at Northwestern.

I came to the conference with some trepidation, since the conference had a formidable array of originalist scholars who are, for the most part, quite conservative and who I thought were therefore likely to give me a very hard time. (This blog?s fearless leader, Jack Balkin, was also present, carrying the flag of true originalism as always.) Imagine my surprise when the claims went entirely unchallenged. (I should say that the other conference papers were preoccupied with much more abstract questions of constitutional theory than the ones I was engaging with, so the fact that there wasn?t much dispute addressed to my paper may reveal more about the preoccupations of the other people there than the merits of my argument.)

I hadn?t planned on writing the paper until I was invited to the conference, but after thinking about it a bit I realized that I had become persuaded, while doing research focused on other questions, that these judges were producing really bad, result-driven historical arguments, and that nobody had said so with quite the emphasis that they deserved. The paper surveys the claims of each judge and compares those claims with the supporting evidence. The results aren?t pretty.

The ?originalism? that one now finds on the Supreme Court is a phony originalism, opportunistically used to advance substantive positions that the judges find congenial. There are originalists who deserve to be taken seriously, but none of them are Supreme Court justices.

The judges? disingenuousness raises the question what originalist scholars are, objectively, doing. One thing that originalist scholarship will certainly do is stir the pot of constitutional interpretation, turning up new and potentially revolutionary meanings for old provisions. Those new meanings may subsequently be refuted by subsequent scholarship. But those refutations don?t stop the judges from citing this work. The function of all this scholarship in the Supreme Court, then, is somewhat different than its authors intend: ?originalist? justices opportunistically use the scholarship to attack areas of the law that they don?t like. Since the conclusions of historical scholarship shift over time, and since the judges are not constrained by the fact that a conclusion reached by some scholar at some time has since been refuted, the consequence is to broaden judicial discretion by presenting judges with a broad array of possible interpretations, each of which have sufficient originalist credentials to qualify for citation in the U.S. Reports.

In his classic work of anticommunist propaganda, Masters of Deceit, then-FBI Director J. Edgar Hoover lists the various types of supporters upon whom the Communist Party relied for its nefarious ends. ?The fellow traveler, while not a member, actively supports (travels with) the Party?s program for a period of time.? Fellow travelers are valuable to the party precisely because they are not affiliated with it. ?They are more valuable outside: as financial contributors, vocal mouthpieces, or contacts between Party officials and non-communists. They constitute, in fact, fronts for, and defenders of, the Communist Party.? The party also depends on the ?dupe,? the person who ?unknowingly is under Communist thought control and does the work of the Party.?

Hoover did not want to be too hard on the dupes. Most of them, he wrote, were ?loyal, but deceived, citizens.? Most originalist scholars do not mean simply to be shills for the agenda of the Republican Party. They should, however, understand the function they are performing. They are being used.

Full post as published by Balkinization on April 27, 2008 (boomark / email).