Testiness at the First Annual Conference on Originalismism

 by Michael C. Dorf

Yesterday I "attended" and moderated a panel at a fascinating Zoom-based conference hosted by the three law schools with the closest connection to originalism in constitutional interpretation: Georgetown Law Center, the Antonin Scalia Law School at George Mason University, and the University of San Diego School of Law. Because the focus of the conference was the study of originalism rather than originalism itself, the conference was titled "Launching Originalismism." As co-conveners Professors Randy Barnett, Michael Rappaport, and Ilya Somin wrote on the conference homepage:

For many years, constitutional scholars debated whether to give dispositive weight to the Constitution's original meaning. That debate is over. Originalism won. The question has now shifted to how to do so, which is a question about the boundaries of originalism. This first-of-its-kind conference brings together originalist scholars of all stripes, as well as a few stubborn holdouts, to begin the study of originalism itself--in an effort to understand originalism. If originalism is the view that the Constitution's original public meaning was and remains fixed, our topic today is meta: We ask questions that are not within but about originalism. In so doing, we declare ourselves engaged in originalismism. 

Regular readers of this blog will not be surprised to learn that I am what the organizers describe above as a stubborn holdout. Accordingly, the panel I moderated was called Originalismism for Nonoriginalists and Nonoriginalismismists. It featured Professors Mitchell Berman (who presented a paper titled Originalismism Doesn't Even Rise to the Level of Bunk), Cheryl Harris (whose paper Originalismism's Original Original Sin explored the problematic roots of the problematic roots of originalismism), and Jack Balkin (whose book-length paper, Originalism and Originalismism are Dead; Long Live Originalismismism, argued that for any conception originalism-n, where n is the number of "isms," originalism-n+1 can be mapped isomorphically onto originalism-n). Our panel was terrific, but in the balance of today's column I want to focus on the day's first panel, Why Originalismism?

The day began calmly enough. Professor Rappaport and his co-author Professor John McGinnis led off with a paper championing "original methods originalismism," in which they argued that the conference attendees should attend to the methods of their own works to discern the "secret decoder ring" to originalismism. Things turned testy, however, when Professor Stephen Sachs (who presented a paper called Originalismism's Backdrops Are Already Our Methodology) stated that Rappaport and McGinnis were making a "category error" by employing an approach better suited to originalism than to originalismism. Professor Balkin appeared to mouth the phrase "no they're right because of the isomorphism," which would have been a useful defense of Rappaport and McGinnis, except that Balkin forgot to unmute his microphone. As a result I cannot be sure that he wasn't simply talking to someone off camera and saying something completely different, like "boys, don't fight here; go to the gymnasium." 

The real fireworks on the first panel came next. During his remarks (We're All Originalismismists Now), Professor Lawrence Solum used the term "originalismismist" to refer to judges and scholars, like himself and most of the conference attendees, who subscribe to originalismism. By contrast, in both his paper (Constructing a Constructionismism to Complement Originalismism) and his presentation, Professor Keith Whittington used the term "originalistist" to refer to adherents to originalismism. When Solum objected to Whittington's terminology as "at best inelegant," Whittington shot back that Solum's objection was "merely semantic." At that point, it was probably for the best that they were talking to each other over Zoom, because Solum flew into a rage at the notion that anything, "let alone a dispute about the right word to describe the study of a view about semantic content, could be dismissed as merely semantic."

The Zoom-based nature of the gathering paid special dividends during the Q&A. Oxford University Professor of Musicology Robert Daly, who surely would not have attended an in-person version of the conference in California, where it was originally scheduled, offered a comment. You can view the recording here, but below I'll transcribe it: 

I wonder whether any of the panelists is aware that theirs is not the original usage of the term originalismism. The original originalismism was a view about music. During the Second Great Awakening of the early 19th-century, some people we would now call religious fundamentalists took the view that the Bible condemns all music. There was a countermovement among fundamentalists of people who thought that music was permissible, so long as it was improvised. This was seen as analogous to speaking in tongues and thus holy. The countermovement was called originalism for the idea that music was permissible if performed spontaneously or originally but not if repeated. Well, fast forward to the end of the 19th century and the invention of the phonograph and some blokes revive this idea, but now it's an objection specifically to the playing of recorded music. To distinguish the new form of originalism from the old, some wags who thought the opposition a form of Ludditism facetiously started calling it originalismism. So my question is whether the panelists realize that they have adopted a joke name.

There was a long pause before Professor Will Baude (who was not on the panel but jumped in anyway) ventured an answer. Here's what he said:

If you really want to go back, I guess you could say that the original original originalismismist was Francis Bacon, author of The New Organon, except of course that Bacon, who wrote in English, actually titled the book in Latin: Novum Organum, which was a rather grandiose allusion to Aristotle. Bacon was a polymath, who surely would have known that in addition to being a word in Latin, "organum" was a middle English word meaning a polyphonous melody, so there was a double if not a triple meaning. He was harkening back to both Aristotle and to the music reference--a different music reference from the one you gave Professor Daly--but also gesturing forward with the "novum" or new. In that sense, Bacon, even more than your possible Luddites, was anticipating our current usage of the term originalismism, with its connotations of something old wrapped in something new and vice-versa, just like the Constitution.

While Baude was mesmerizing most of the little heads on the Zoom screen with his erudition, Professor Daly nodded sagely, finally answering "well-played old chap. That was gibberish festooned as poppycock, but brilliant nonetheless."

At that point, a woman using a Mitch McConnell filter Zoom-bombed the conference and repeatedly screamed "it's turtles all the way down" until the moderator managed to mute her. The rest of the conference was less heated, except during the wrap-up session, when a fierce debate broke out over whether there have ever been any "real" originalismismists (or originalistists) on the Supreme Court.