Tensions Within the Synthesis of Originalism

At The New Reform Club, the estimable Seth Barrett Tillman makes an observation about double speak coming from the mouths of left leaning law professoriate on "originalism." 

Perhaps Chemerinsky believes the Framers’ intent is discoverable in regard to Senate advice and consent, although not in regard to the First Amendment. That’s a possibility—a way to reconcile his two positions. 

There is a second possibility. The alternative view is that Chemerinsky signed the letter because he agrees with the result argued for, and because he understands that non-originalist discourse is not favored by the American public he is hoping to convince. In other words, Chemerinsky and his colleagues are unwilling to make the effort to explain to the public that a better mode of constitutional discourse is possible; indeed, the 350+ signatories hope to convince the American public via a mode of discourse that they themselves reject, without even putting the public on notice that they reject that discourse. No one is stunned by this situation precisely because it is the norm.  

.... If Chemerinsky, a dean at a publicly funded law school, and 349 other academics take this second approach, reserving one mode of discourse for the elect, and another for the public, then the public, particularly tax-paying public, will take the hint.

Is it any wonder that millions vote for Trump?

I don't defend the ethics of such practice. But I can't find myself outraged by it either. I neither like nor trust leaders and that includes Donald Trump. Likewise, I've read too much Leo Strauss to be surprised that philosophers and politicians would engage in communication that offers one message to one set of people, and a different one to another set.

And certainly figures who support left leaning politics don't hold a monopoly on this practice either.

If I may, I will offer a slightly different explanation for why law professors who have an interest in politics in particular behave this way. Law is arguably a subspecies of philosophy, but with its own special set of rules. That is, arguments that are fallacious in philosophy "work" in law. Appeal to authority is the classic argument that is valid in law, but fallacious in philosophy.

In democratic politics, one needs a voting majority to validate certain outcomes. That commits another fallacy in philosophy, the argumentum ad populum.

Likewise, an argument that seems to "work" in the politics of law (alluded to by Prof. Tillman) is "originalism," that is, arguments that appeal to the original American Founding.

Still Professor Tillman lists 10 challenges made of originalism (see the original post to save space here) that I think are serious. Some harder to answer than others. Furthermore, there is a difference between the "letter" of the original Constitution as amended (what is "justiciable" by Article III Courts), and the "spirit" of the American Founding (something the argument from originalism wants us to remain faithful to, even if the political order, sans a constitutional amendment, is permitted to deviate from, however unwise).

I am more interested in exploring the issue of the "ideology" of the American Founding (that would be "spirit" more than "letter" issues) and tensions found there. Harvard historian Bernard Bailyn notes 5 key ideological sources of the American Founding: 1. "Biblical" (we could call this everything from "Judeo-Christian," to "Christian," to "Protestant Christian"); 2. Greco-Roman; 3. British common law; 4. Whig opposition; and 5. Enlightenment philosophy.

I used to say that #5 -- Enlightenment -- was the most important and lens through which all others were viewed. But that's not what Bailyn argues. Rather, he points to #4, Whiggery as the lens. Or at least the result of the stewing the pot.

Now this is just a construct of five. One could further divide or consolidate the categories to go above or below the numerical five. Moreover, certain key figures like for instance John Locke could be claimed by more than one of the categories. And the different categories often times contradicted one another.

It's true that most of the "cutting edge" thinkers in today's academy are not interested in exploring the history of the American Founding for any reason other than to deconstruct it in favor of some post-modern theory. But I think that an honest exploration of the American Founding offers something to those whose politics are left of center, even as other sources in the synthesis hold contradictory positions.

Harvard's Eric Nelson offers cutting edge research that encompasses at the very least categories #1 and #4. The Amazon page for Dr. Nelson's book asserts his thesis demonstrates:

It was the Christian encounter with Hebrew sources that provoked this radical transformation.

During the sixteenth and seventeenth centuries, Christian scholars began to regard the Hebrew Bible as a political constitution designed by God for the children of Israel. Newly available rabbinic materials became authoritative guides to the institutions and practices of the perfect republic. This thinking resulted in a sweeping reorientation of political commitments. In the book’s central chapters, Nelson identifies three transformative claims introduced into European political theory by the Hebrew revival: the argument that republics are the only legitimate regimes; the idea that the state should coercively maintain an egalitarian distribution of property; and the belief that a godly republic would tolerate religious diversity. One major consequence of Nelson’s work is that the revolutionary politics of John Milton, James Harrington, and Thomas Hobbes appear in a brand-new light.

Nelson demonstrates that central features of modern political thought emerged from an attempt to emulate a constitution designed by God. This paradox, a reminder that while we may live in a secular age, we owe our politics to an age of religious fervor, in turn illuminates fault lines in contemporary political discourse.

The figures Dr. Nelson invokes were not American; rather they were British. But they come from a particular period in Great Britain that greatly influenced America's Founding: Ideological source #4.

In addition, there was a marked difference between "liberal" sources (perhaps more properly belonging to #5) on the one hand, and "republican" sources on the other. The liberal sources were more "free market" oriented in their positions. The "republican" sources were more collectivistic and egalitarian on economic matters. 

Nelson's is saying the "republicans" were proto-John Rawlsians,* as opposed to proto-Milton Friedmanites.

(*In my first best world, I'm more sympathetic to Milton Friedman than to John Rawls. When it comes to government imposed limits on wealth and inequality, one serious question we Friedmanites offer is "who decides what's fair and where the line draws?" Well, John Rawls provided an answer. It may not be satisfactory, but he gave one. Likewise Eric Nelson's "republicans" gave those answers, indeed anticipated them, on similar grounds as well.)