Originalism as a Model of Political Communication

Originalism’s Promise, Lee J. Strang’s ambitious new book published by Cambridge University Press, was previewed at Law & Liberty a few months ago in a podcast entitled “Justifying Originalism.” In a wide-ranging conversation with Richard Reinsch, Strang hinted at the eclectic nature of his thesis, peppering the discussion with references to Aristotle, Jack Balkin, James Madison, Randy Barnett, Thomas Aquinas, Christopher Wolfe, Robert George, and John Finnis (as well as the familiar names of John McGinnis and Mike Rappaport). “Aristotle’s got a lot to say about Originalism,” he teased.

This is quite a diverse lineup, and fittingly so. Strang’s book, subtitled “A Natural Law Account of the American Constitution,” does not fall into any of the predictable “camps” that have formed among center-right constitutional scholars. Strang declines to “take sides” in the contentious internecine quarrels that have emerged between (for example) conservatives and libertarians, proponents of natural law and “positivists,” advocates of “judicial engagement” and those favoring judicial restraint, Harry Jaffa and his natural rights acolytes, and everyone else, and so forth.

Strang is aware of the myriad divisions and differences—he notes that originalism “is not monolithic” (surely an understatement), and that “originalists disagree on a lot”—but endeavors to reconcile (or at least defend) the many competing strains of originalism, which share the common belief that the Constitution’s original public meaning is its only legitimate and authoritative meaning. Judges should apply, and not invent, constitutional law. Strang’s nemesis is non-originalist theories of interpretation ushered in by the Progressive Movement and enabled by the critique of legal determinacy represented by Legal Realism. The Warren Court’s liberal activism generated a cottage industry of non-originalist scholarship in the legal academy justifying the notion of a malleable “living” Constitution serving as a cornucopia of progressive policy outcomes to be dispensed by unelected judges.