Why the Right’s Mythical Version of the Past Dominates When It Comes to Legal “History”
This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
Originalism is now the dominant approach to constitutional interpretation for the Republican appointees to the Supreme Court, at least when originalism suits the ideological agenda of the modern Republican Party. In doing this, the Republican-appointed supermajority has effectively turned the Constitution into an Etch-A-Sketch, the popular children’s toy that makes it easy to erase and insert whatever the user dreams up. Sections of the Constitution—in fact, some individual clauses of the Constitution—have been supersized by originalists, while others have been effectively erased.
An illustrative example is the Second Amendment: The preamble, affirming that the amendment’s purpose is to further the goal of a well-regulated militia, has been effectively erased, while the latter part of the amendment, affirming that the right to keep and bear arms shall not be infringed, has been enlarged and effectively rewritten to read that just about everyone in America has the right to carry guns in public no matter what. For originalists, the First Amendment and the Second Amendment are cut from the same cloth. The only problem with this claim is that the texts share little in common. That the amendment’s original authors did not view the terms “abridge” and “infringe” as synonyms (the former meaning to reduce and the latter meaning to transgress) is just one of the many sleight-of-hand tricks originalists have used to rewrite the Constitution to suit their ideological preferences. Critiques of originalism are now legion. But what has not drawn much attention is the vast ecosystem created by originalists to weaponize and deploy their faux historical method to advance the goals of the modern Republican Party. The creation of a vast and sprawling “originalist industrial complex” is one of most the most impressive and alarming changes in American law over the past generation.
The originalist industrial complex includes far more than the Federalist Society, the right-wing fraternity, funder, and employment agency for those eager to advance the legal and political goals of the modern Republican Party. What has flown below the radar is the weaponization of originalism by a small number of academic centers that package, market, and provide an array of custom concierge surfaces for would-be originalists.
One example is the Claremont Institute’s John Marshall Fellowship program, which targets future judicial clerks. Participants in these seminars have the chance to study with John Yoo, author of the war on terror’s torture memo, and John Eastman, the primary legal architect of the Jan. 6 insurrection. The mission of the fellowship is to spread the gospel of originalism, according to the website: “The John Marshall Fellowship Program is intended for prospective clerks and legal scholars who will have opportunities to educate the judges and Justices with whom they work, and the legal community at large.”
The Federalist Society’s rise to dominance has had the side effect of dismantling all rivals to originalism, meaning that nearly all other forms of serious conservative constitutional thought have suffered. There are now few champions of old-fashioned judicial minimalism or restraint left in the legal academy. What does that mean practically? Elite law schools must now hire originalists to prove their ideological “diversity.” Thus, the only form of affirmative action left in the legal academy is hiring originalists at elite law schools.
Georgetown Law’s Center for the Constitution runs an “originalist boot camp” that exists to train the next generation of ideological warriors for the movement. Even more troubling, the Georgetown Center has been running a stealth seminar for judges. In a clever bit of detective work, Yale legal scholar Reva Siegel has ferreted out the vital role that this “seminar” plays in the originalist ecosystem:
Georgetown runs a separate special seminar entitled “Originalism for Judges.” To put the point modestly, a program called “Originalism for Judges”—whose apparent attendance list features only judges appointed by Republican presidents and academics who employ originalist methods without skepticism about their practical or normative problems or considered analysis of alternatives—will (1) restrict the perspectives on originalism that the judges discuss and (2) provide a rich opportunity to infuse originalist interpretation with values-based reasoning.
As Siegel’s keen analysis shows: “Twenty-one federal judges attended the 2022 seminar, all of whom were appointed by Republican presidents—including nineteen Trump appointees. Through these interactions, judges confer prestige on academics, and academics legitimate the practice of judges.” The most effective critics and critiques of originalism are seldom given equal time in these venues. The deck is always stacked in favor of the originalist home team at these seminars and conferences. In this sense, the Federalist Society and it is originalist fellow travelers are a classic example of right-wing snowflakes—they may talk tough, but they cry foul when challenged and refuse to debate critics on a level playing field.
Thus far, Congress has not cast its investigative light on the sometimes shadowy world of the originalist industrial complex. Nor has the legal academy risen to the challenge of addressing this network’s web of influence. Most frustrating of all, few law schools are training graduates with the tools needed to deal with the originalist industrial complex. Most graduates from law schools are unlikely to have ever taken a course devoted to the historical tools necessary to critically evaluate originalism and analyze America’s constitutional past. Only a few law schools have strong ties to the history and political science departments of their universities, in which faculty with these tools regularly teach. Currently, there is no academic center devoted to the type of constitutional history that could serve to critique, fact-check, and evaluate originalism. There is nothing comparable to the originalist centers at Georgetown and Claremont from the left. Nor does anything match the level of integration and coordination that these centers have with organizations such as the Federalist Society, Heritage, Hoover, and other right-wing think tanks and advocacy groups.
Thus, despite the fact that there are dozens of legal historians teaching at top law schools, no law school has taken up the challenge posed by the originalist industrial complex. Thoughtful critics of originalism exist, but their voices are drowned out by the din of the originalist industrial complex. Dozens of legal history courses related to faculty research interests populate course catalogs at elite law schools. Yet, legal historians have not applied their understanding of structure and power to the institutions responsible for the production of knowledge in their own intellectual world. Law schools need to wake up to the way history has been hijacked by the hard right. An alternative set of forums, seminars, and institutes devoted to serious constitutional history and its application to current legal issues must be created to combat the distortions, half-truths, and errors that circulate freely in the originalist ecosystem. Until law schools wake up from their slumbers, the originalist industrial complex will continue to run amok.
