Originalism is a Successful Theory (In Part) Because of its Complexity: A Response to Professor D.A. Jeremy Telman, The Structure of Interpretative Revolutions
35 Const. Comment. __ (2020)
34 Pages Posted: 7 Jul 2020
Date Written: June 29, 2020
Professor Telman’s review of Originalism’s Promise: A Natural Law Account of the American Constitution is thoughtful — it identifies positive contributions made by Originalism’s Promise and offers pointed criticisms where Professor Telman believes its arguments fall short. Professor Telman’s review is also an excellent example of the genre because it goes further and argues that Originalism’s Promise is itself a manifestation of originalism’s dire predicament, in Professor Telman’s view, its “crisis.” Professor Telman’s review continues his scholarly engagement with originalism, and originalism is the better for it.
In addition to the many and variety of particular criticisms Professor Telman lodges against Originalism’s Promise, three fundamental and inter-related critiques underlay much of his evaluation. First, Professor Telman claims that my conception of originalism does not adequately acknowledge or deal with stubborn constitutional indeterminacy. Second, he contends that the Constitutional Communication Model of originalism is too thin because it hews to a middle-road among different conceptions of originalism and this opens it up to “ideologically-driven and outcome-determinative” use. Third, Professor Telman asserts that Originalism’s Promise works so hard to force the theory to fit (a fundamentally nonoriginalist or eclectic) American constitutional practice that it exemplifies how originalism is fracturing under its complex intellectual “appendages.”
In this brief Response, I focus my remarks on these three fundamental contentions and argue that Originalism’s Promise is an example of a complex theory successfully grappling with the complex phenomenon it is attempting to explain. Its embrace of constitutional construction (with its premise of constitutional underdeterminacy) is a powerful example of the theory better fitting constitutional practice while, at the same time, becoming more complex. Originalism’s Promise navigates contemporary originalist scholarship and charts a path that incorporates (what is, to my lights) the best of the extant literature. This too, makes the theory more complex. I then argue that Originalism’s Promise exemplifies the complexity that any successful intellectual account of a complex phenomenon, like American constitutional practice, must possess in order to be persuasive to educated audiences. After briefly addressing Professor Telman’s post-originalist paradigm claim, in the last part, I address the most important of Professor Telman’s particular criticisms.
Keywords: originalism, Originalism's Promise, natural law, constitutional construction, precedent, determinacy
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