Law & Liberty: “Originalism as Ideology”
By Michael S. Greve
Earlier this month, I had the distinct honor of appearing on a panel (alongside John McGinnis and Charles Kesler) at a terrific conference sponsored by the Jack Miller Center and the Lynde & Harry Bradley Foundation. Our panel topic was, “Exploring Originalism.” This slightly edited transcript of my remarks appears with the sponsors’ kind permission.
I propose to explore originalism as ideology. What I mean by “ideology” is not partisan commitment but the original, Hegelian meaning: an idea whose progenitors deny, or cannot bring themselves to reflect upon the contingent conditions of that idea’s origin or creation—a thought or theory that parades around as timeless truth, as opposed to recognizing that it is a child of its time. In my view, originalism has been way too ideological in that sense. It would benefit from reflection and candor.
Originalism originated circa 1982 as a bit of a good-natured joke. Conservatives needed some respectable way of telling Justice Brennan and Justice Marshall, you can’t just make things up. “Strict construction” had failed (too Nixonian); so had Alex Bickel’s “passive virtues” (too fusty, and futile after the 1960s and certainly after Roe). Originalism looked like it might work. It seemed to offer a big tent for conservatives of all stripes and, at the same time, a program beyond partisan ideology and culture wars. This isn’t just about abortion or the death penalty, originalism seemed to be saying: we have a neutral program—a method of interpretation. Obviously, that was never quite true; but it had a certain surface plausibility…
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Michael S. Greve is a Professor of Law at the Antonin Scalia Law School, George Mason University. Previously, he served as John G. Searle Scholar at the American Enterprise Institute (AEI), where he specialized in constitutional law, courts, and business regulation and served as chairman of the Competitive Enterprise Institute. Prior to joining AEI, Professor Greve was founder and co-director of the Center for Individual Rights, a public interest law firm specializing in constitutional litigation. A prolific writer, he is the author of nine books and a multitude of articles appearing in scholarly publications, as well as numerous editorials, short articles, and book reviews. He is a frequent speaker for professional and scholarly organizations and has made many appearances on radio and television. In addition, Professor Greve has provided congressional and state legislative testimony, has lobbied and consulted in federal agency proceedings, and has provided litigation services and management in over 30 cases, including matters before the U.S. Supreme Court.
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