In a 1988 lecture Supreme Court Justice Antonin Scalia declared that originalism was “The Lesser Evil” over other methods of constitutional interpretation. (1) Born out of a resentment against what was perceived as an activist liberal Supreme Court, the movement to make originalism the way to interpret the Constitution did not begin with Scalia’s speech, but his appointment to the Supreme Court in 1986 was a watershed moment for it. In the 1970s conservatives began calling for a return to the Constitution and its “fixed” original meaning as a way to restrain Justices and “depoliticize the law.” (2) As the movement expanded, history, as a resource in which to discover the original meaning, was set to go from a side-show in constitutional law to the main event. A contested past was now required to yield certainties, and to do so without the appearance of ideological bias. Nonetheless, it soon became clear that the push for originalism was a political strategy to reshape constitutional law in favor of conservative principles. (3) But for this to happen, originalism had to yield the “correct” original meanings. This need to yield the “correct” history ensured that the well-known abuse of history in law would reach new heights. Despite their ideological underpinnings, the products of originalist jurisprudence are packaged in the language of certainty and impartiality. For this reason, as noted by Eric Berger, “Originalism is particularly worthy of criticism.” By “creat[ing] an especially misleading illusion of certainty” it operates by deception. (4) Contrary to Scalia’s assertion, originalism is not, in fact, the lesser of two evils, but by virtue of its pretense to objectivity the greater evil. It is politics disguised as legitimate scholarship.
Despite its many flaws, especially the very problematic historical record, originalism has gained in popularity and enjoyed broad application. (5) Given its popular appeal and the fact that so many legal scholars and organizations are dedicated to this method it is unlikely to disappear any time soon. Even if the jurisprudence of originalism faded into obscurity, there is no doubt that history will remain a crucial resource to bolster legal arguments. History is seen to confer legitimacy upon constitutional arguments and enjoys broad popular appeal. But the motives, sensibilities, and training of legal scholars diverge considerably from that of a historian. This makes it more likely that they will abuse history in order to bolster their arguments in favor a pre-determined conclusion.
In response to the frequent misuse of history in law some have recommended that its use by jurists be abandoned altogether, but others recognizing the implausibility of this solution have instead offered advice and/or rules to help them use history responsibly. (6) Regrettably, there is little evidence that lawyers, judges, justices or legal scholars have taken the advice of these well-meaning scholars. With busy schedules and no professional consequences, other than the occasional historian calling them out for their mischief, there is little incentive to change. There are two factors that work in tandem to encourage the abuse of history. The first comes from within the field itself. Lawyers are trained in the adversarial method in which the point is to make the best possible argument in favor of a particular claim. This methodology is well-suited in the service of ideological goals. This gets to the second factor, which gets at the incentives and motives driving the abuse of history, and in part explains why attempts to improve historical scholarship in law have failed. The desire to further one’s ideological agenda is encouraged and supported by the proliferation of partisan political organizations, funded by wealthy donors. To understand how these considerations contribute to the poor state of historical scholarship in the legal profession, it will be necessary to examine each in more detail.
Objectivity vs. Advocacy
The use of history to bolster ideological positions is simplified by legal training and practice. A popular joke captures the source of the problem: Three professionals are asked by their client: “What is 2+ 2?” The accountant says, “Four”; the engineer says, “Four point zero”; and the lawyer says, “What do you want it to be?” (7) Lawyers are required, and therefore trained, to put forward the best possible case for their clients, which means that “they are highly skilled at marshaling evidence zealously in favor of a certain outcome.” (8) In other words, they are advocates, not seekers of objective knowledge. Under the adversarial method it is assumed that the truth will emerge as a judge weighs the skewed cases of the two opposing sides. How well this goal is actually achieved is open to debate, but rather than focus on the court setting I want to critique its appropriateness in the realm of legal scholarship. Its use in scholarship is problematic as a method of producing objective results. Some have argued that advocacy rather than objectivity is the goal of legal scholarship. Those within the field who are engaged in scholarly debates may understand that they are engaged in advocacy, but they make claims to objective knowledge, and often proudly declare that they have found the “fixed” original meaning of the Constitution. If they are going to make claims to objectivity, they should be held to the same standards as all other knowledge-seeking scholars. It may be even more important for those doing work in law, since their work often has a significant impact on all of our lives, such as the Citizens United decision that extended the “speech” rights of corporations. The intellectual justifications for these decisions was worked out by seemingly credible legal scholarship, but what was carefully masked were the ideological underpinnings of the work, something for which the adversarial method is well suited. (9)
Matthew J. Festa has defended the adversarial approach to truth “as an adequate mechanism to systemically protect the integrity of the historical record when discussed by legal scholars through the production and evaluation of competing versions of historical evidence.” (10) It can hardly be said to be “adequate” given the sorry state of historical practice in legal scholarship. And even if it were, “adequate” is not good enough for such potentially consequential scholarship. Festa argues that the problem can be fixed if legalists are held to the evidentiary rules that already exist for lawyers. The evidence-based rules which require that evidence not be distorted, altered, or manufactured are important, but they don’t get to the heart of the problem. Given that the adversarial method encourages skewed outcomes because it requires a biased presentation of the evidence in the service of a predetermined conclusion, it should be rejected for all scholarly work, including in law. As a result, legal scholars select from the historical record only supportive evidence, ignore contexts and complexities, ignore alternative explanations, impose present ideas and mores on the past, and when necessary spin the evidence. All while adhering to the rules of evidence. As the legal scholar Buckner Melton points out, “advocates may pay lip service to the truth, [but] their main objective is victory.” (11) To begin with a conclusion that is not open to refutation based on the evidence ensures that the result will be bad scholarship no matter how impressive the argumentative skills. The goal is persuasion, not truth or understanding. Under these circumstances, history becomes nothing more than a resource to be exploited for argument’s sake. To eschew good scholarship in the name of practicality is unacceptable when so much is at stake. Festa does concede that a “combination of both adversarial and objective historical expertise” may be a workable solution. (12) But I see no reason why the adversarial method needs to be retained at all for legal scholars, who are free from any obligation to clients and the time constraints of the court system.
More importantly, given that their work is packaged and sold as serious, objective academic work in legal journals and to the public in general, they should be held to the same objective standards as all scholars who produce knowledge. Their claims are promoted as objective certainties in public lectures, forums, articles, and books in order to rally the public behind a particular vision of constitutional law. For example, as part of a successful strategy to alter the legal landscape the Federalist Society has propagated its ideas “in newspapers, on Fox News, and by reaching out early on to the newly minted class of Tea Party legislators.” (13) These targeted audiences are ill-equipped to evaluate the claims that are being presented as fact. Audiences come away with the impression that certain interpretations of the Constitution are the only correct ones, all others are by implication wrong, and are often seen as the product of malevolent forces.
Some have pointed out that historians also argue in favor of a particular thesis, however, the difference is that historians begin by trying to understand the past before constructing an argument, and in defense of that stated position historians are bound by the rules of objective scholarship. That best friend of an advocate, cherry-picking, is not allowed. Integrity and honesty requires historians to conform to the rules of accepted scholarship, which are designed to reduce individual bias. While all knowledge (scientific, historical, philosophical, etc.) is necessarily contested and provisional it does not follow it is therefore subjective. It is objective because it was obtained through agreed upon methods and practices that have proven to minimize bias. Of course, the rules and methods, just as the knowledge itself, are open to challenge, but this is a strength rather than a weakness. Honesty requires that we reject those theories or methods which do not hold up to scrutiny, whether discredited by new evidence, new methods, reason, or other failures. This is how progress is achieved. Given the limitations of human capabilities, this is the best that we can do. While not perfect, this process has proven to be of great benefit to humanity, and we would be foolish to abandon this system of knowledge acquisition for the destructive relativism of the postmodernists. There are different perspectives, but from this it does not follow that all truths are equally valid. If we were to accept this, we would have to accept that the claims of Holocaust Deniers, or those from the pseudo-historian David Barton, are equally as valid as that of historians. A great example illustrating how and why some interpretations and/or claims are not valid comes from the libel suit against Deborah Lipstadt, who had accused the lay historian David Irving of distorting the historical record in the service of anti-Semitic, far-right ideology. In response, Irving brought a libel suit against her in the U.K. To win the case, Lipstadt’s team had to prove that Irving was guilty of the charges that she had accused him of, thereby putting the Holocaust itself on trial. The historian Richard J. Evans, who was a historical adviser for Penguin Books and Lipstadt during the trial, concluded at the end that “[t]he trial taught the difference between real history and politically motivated propaganda.” (14) Some interpretations are better than others, and some are not valid at all. (15) Interpretations that follow the rules and are most closely aligned with the evidence are better interpretations than those which do not.
Switching to the objective model of scholarship does not necessarily entail the extensive training of historians, philosophers, or social scientists. It requires only that they learn and/or follow the basic requirements of all good scholarship (include all relevant evidence, consider alternate explanations, avoid formal and informal logical fallacies, etc.) and some basic knowledge of historical methodology (interpreting primary and secondary sources, weighing evidence, understanding the past on its own terms, etc.). The quality of scholarship will be greatly enhanced by rejecting the adversarial method which requires legalists to pull out all the stops in favor of a predetermined conclusion.
Besides institutional inertia, the biggest road block to the implementation and use of standard objective methods in constitutional law is the fact that legal scholars are rewarded financially, professionally, and publicly for their politically motivated work. The proliferation of political advocacy organizations is largely responsible for this state of affairs. If anything is going to change, the political motivations that are driving the abuse of history will have to be addressed.
The Distorting Effects of Political Advocacy Organizations
In our information saturated world, the loser has too often been the truth. On the Internet misinformation, falsehoods, and conspiracy theories spread unchecked. The profit-driven media, which either caters to a particular ideology or operates as if objectivity requires neutrality, has also done its share of damage. Another driving force contributing to our post-factual world is less obvious, and has been operating and shaping our society with little public awareness: political advocacy organizations and their think tanks. They vary in their goals and means of operation, but a significant number of them have little interest in truth or knowledge. As has been pointed out by the philosopher Susan Haack, these groups engage in “[s]ham reasoning, in the form of ‘research’ bought and paid for by bodies with an interest in its turning out this way rather than that, or motivated by political conviction, and fake reasoning, in the form of ‘scholarship’ better characterized as a kind of self-promotion, are all too common.” (16) For many of them, their entire purpose is to spread their ideology, or to protect the wealth of individuals and/or corporations. Even those that began honestly trying to find real solutions are being corrupted by the influence of corporate donors. (17) They seek to shape public policy and public opinion in favor of their political agenda(s). Any literature or “research” produced by these organizations is shaped by ideology (or to protect the financial interests of their donors), not reality. If they have to ignore, distort, or spin evidence to produce an outcome favorable to their mission they will do so. These findings are then presented in the language of truth and certainty, and packaged with all the trappings of credible scholarship. The appearance of credibility and respectability then gives them the power to influence public policy without arousing too much public attention or scrutiny. (18) They feed into the politicization of knowledge, thus making it increasingly difficult to distinguish fact from fiction, especially for the average citizen who is ill-equipped to discern what is credible and what is not.
One of the more visible examples of the power of these groups to shape policy and public perceptions has been the issue of climate change. Flush with money from oil and gas companies, several political advocacy groups were able to wage a public battle against scientists to successfully create the perception of doubt, when there was none within the scientific community. With public confusion and cowed politicians, they were able to bring any legislation meant to deal with the problem to a halt. (19) The media, sadly concerned more with the appearance of neutrality than with the truth helped create this perception of doubt. In addition, reporters have been too trusting of experts without checking their affiliations and potential conflicts of interest. Realizing the problem the ProPublica reporter Robert Faturechi states, “Reporters and editors need to be more skeptical of experts, and the false sense of security that their name brand affiliations provide. Before we quote them or their studies, or publish their op-eds, we have to ask harder questions about their funding and their outside employment.” (20) We are now all paying the price for this mischief, and it will only get worse.
The same distorting forces are shaping law. The origins of the political revolution that has transformed the legal landscape began in the 1970s, after the conservative Olin Foundation transformed itself from a traditional philanthropic organization into “an ideological instrument” to promote conservative causes in general and free-market ideology in particular. For maximum impact the leaders of the organization targeted elite institutions of higher education in order to create “beachheads” for spreading their worldview. To mask their real aims, the proposed programs were sold as scholarly endeavors. With this goal in mind, the programs were given neutral names designed to mask their ideological goals. One of the architects of this strategy, James Piereson, declared that it was “essential for the integrity and reputation of the programs that they be defined not by ideological points of view.” He admitted that if it had been known that they were to be built upon “pre-ordained conclusions,” which is contrary to academic goals, they would have been doomed. Therefore, they were sold as Law and Economics programs. Piereson explained his thinking: “If you said to a dean that you wanted to fund conservative constitutional law, he would reject the idea out of hand. But if you said you wanted to support Law and Economics, he would be much more open to the idea.” (21) Using this clever strategy in conjunction with the lure of lots of money, they were able to establish programs and courses at Harvard, Yale, Chicago, Stanford, Penn, Berkeley, Georgetown, Colombia, as well as other institutions of higher education. The strategy was brilliant. By establishing these programs at these prestigious institutions they automatically acquired the respect and status associated with them.
The Olin Foundation spent itself out of existence in 2005, but its legacy lives on. It created a precedent and provided a model for others to follow. In addition, it provided much of the funding to establish the Federalist Society for Law and Public Policy Studies, which more than any other group has managed to significantly transform the entire legal landscape. (22) The Federalist Society was created in 1982 by several conservative and libertarian law students who found themselves surrounded by what they perceived as a liberal-dominated profession. With kick-off funds from the Olin Foundation and other conservative groups the organization grew rapidly. It currently has over 40,000 members and a budget of approximately ten million dollars coming from various conservative donors and foundations. (23) The organization is devoted to the “training, education, and networking” of its members for the purpose of advancing conservative ideas.
According to the author of Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution, Amanda Hollis-Brusky, the group is “bound by a simple but powerful set of principles: that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” To implement their vision, they have embraced the jurisprudence of originalism. (24) In its short existence the group has had a major impact on constitutional law. The group has grown to include 150 law-school campus chapters, 75 lawyers’ groups, and over 42,000 lawyers. (25) Four of its members have been appointed to the Supreme Court (Antonin Scalia, Clarence Thomas, Samuel Alito, and John Roberts). Some of its major victories include the Heller decision, in which the Second Amendment was declared an individual right, and Citizens United which extended the “speech” rights of corporations. This constitutional revolution was achieved through “supporting, developing, and diffusing intellectual capital to Supreme Court decision-makers,” and by creating the right conditions to ensure that the “intellectual capital” of the Federalist Society pays real dividends in Supreme Court decisions. (26) A key to their success comes from the subtle and indirect means it uses, allowing them to advance their agenda out of the spotlight.
Few groups have been able to match the success of the Federalist Society, but there are dozens of other advocacy groups, with varying levels of success, seeking to influence the Court. One of the more successful groups, the Liberty Counsel, has had a significant impact. Founded by Jerry Falwell as part of Liberty University, Liberty Counsel approaches law from a Christian perspective and works to “[a]dvanc[e] Religious Freedom, the Sanctity of Human Life and the Traditional Family.” (27) Another successful Christian-centered group, the Center for Public Justice seeks “to equip citizens, develop leaders, and shape policy in pursuit of our purpose to serve God, advance justice, and transform public life.” This group played an important role in lobbying for and implementing faith-based initiatives. (28) These organizations, in conjunction with other religious organizations, have slowly been chipping away at the wall separating religion and government and shaping public perceptions of the meaning of religious liberty, often turning it on its head. This shift has been noted by historian Molly Worthen, “When conservatives cry ‘freedom of religion’ and insist they mean something more than ‘freedom of worship,’ this is what they mean: religious freedom is not just the freedom to gather in a room and pray one morning a week. It is the freedom to impose one’s own religious values on others. Free expression of religion entails the right to reason from religious principles in the public square and — with sufficient electoral support — to enshrine those principles in law and social institutions.” (29)
With such high stakes the impact of these groups should concern us all. Their single-minded ideological agendas distort the intellectual landscape by propping up false or misleading claims masked with a patina of legitimate scholarly research. Many of the legal scholars who produce the intellectual capital directly or indirectly for these political advocacy groups are well rewarded socially and financially for their biased works. Often published in legitimate legal journals, their scholarly appearance provides cover for like-minded judges and justices who use this work in their decisions.
To gain support and legitimacy for their ideas these groups appeal to sympathetic populations. By wrapping the constitutional interpretations in the language of tradition, freedom, and American values, they tie them to the interests and identities of the target populations, thereby creating an army of devoted true believers. In their research Post and Siegel found that the “fusion of political concern and constitutional narrative is driven by a politics of restoration, which encourages citizens to protect traditional forms of life they fear are threatened—threatened by modern mores and by a Court that has (mis)construed the Constitution to require social change.” (30) Galvanized by the belief that the interpretations promoted by these groups are the fixed, original meanings of the Constitution, which they see as part of their heritage, they have become an unwavering political force behind the constitutional revolution. Cultivating these devoted populations has become an essential component of the advocacy missions for these groups and their members.
This strategy is even apparent in the decisions of the Federalist Society Supreme Court justices Antonin Scalia and Clarence Thomas, who have “use[d] their judicial opinions as conscious tools to excite the anger, fears, and resentments of conservative constituencies, and thus to fan the fires of political mobilization.” (31) They paint those who disagree with them, in and out of Court, as malevolent deceivers out to undermine American culture and traditions. This black and white, good vs. evil narrative lifts a political difference of opinion to the level of an existential crisis that must be fought by any means necessary. Armed with certainties against perceived threats to their way of life these mobilized groups see themselves in a struggle for survival against “un-American” forces. Unfortunately, this strategy, while successful, has contributed to the politicization of the country, which then makes it increasingly more difficult to implement rational public policies that would help us solve our most pressing problems.
At this point, the only solution is to expose the sham. With that goal in mind I will be evaluating some influential works relating to the interpretation of the Religion Clauses of the First Amendment over the coming months. (see “Abusing History and the First Amendment”)
(1) Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849-866.
(2)Edwin Meese III, “Construing the Constitution,” University of California Davis Law Review 19 (1985), 29. See also Robert H. Bork, The constitution, Original Intent, and Economic Rights, San Diego Law Review 23 (1986) and Raoul Berger, Government by Judiciary (1977).
(3) Post, Robert & Siegel, Reva, “Originalism as a Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006) 545-574; Andrew Koppelman, “Phony Originalism and the Establishment Clause,” Northwestern University Law Review 103 (2009): 727-750; Mitchell N. Berman, Originalism is Bunk,” New York University Law Review 84 (2009); and Eric Berg, “Originalism’s Pretenses,” University of Pennsylvania Journal Constitutional Law 16 (2013-14).
(4) Eric Berger, “Originalism’s Pretenses,” University of Pennsylvania Journal Constitutional Law 16 (Nov. 2013), 368.
(5) A major problem for originalism is the state of the historical record. The evidence is sparse and what we do have is flawed. James H. Hutson, in his study of the documentary evidence, warns that most of the documents are defective. Many of them “have been compromised – perhaps fatally – by the editorial interventions of hirelings and partisans.” Thus he concludes that “[t]o recover original intent from these records may be an impossible hermeneutic assignment.” (“The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 2). And even if we had better evidence, there still may not be a single clear original meaning. The Constitution and its amendments were the products of compromise and the typical ambiguity of its language means that it probably meant different things to different framers. Finally, there is the question of whether or not we should bind ourselves to a “fixed” meaning.
(6) Jefferson Powell, “Rules for Originalists,” Virginia Law Review 73 (May 1987), 661; Buckner Melton, “Clio at the Bar: Minnesota Law Review 83 (1998), 382; and Matthew J. Festa, “Applying a Usable Past: The Use of History in Law,” Seton Hall Law Review 38 (2008).
(7) Donald L. Drakeman, Church, State, and Original Intent (Cambridge: Cambridge University Press, 2012), 9.
(8) Eric Berger, “Originalism’s Pretenses,” 366.
(9) For an explanation of how the decision was linked to the conservative advocacy group the Federalist Society see Amanda Hollis-Brusky, Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford: Oxford University Press, 2015), 61-89.
(10) Festa, “Applying a Usable Past,” 513.
(11) Buckner F. Melton, Jr., “Clio at the Bar: A Guide to Historical Method for Legists and Jurists,” 83 Minnesota Law Review (1998-1999): 382.
(12) Festa, “Applying a Usable Past,” 480.
(13) Hollis-Brusky, Ideas with Consequences, 164.
(14) Richard J. Evans, Lying About Hitler: History, Holocaust, and the David Irving Trial (New York: Basic Books, 2001), 266.
(15) For more on the debate over historical truth and objectivity see Joyce Appleby, Lynn Hunt & Margaret Jacob, Telling the Truth about History (New York: W.W. Norton & Company), 1994; Richard J. Evans, In Defense of History (New York: W.W. Norton & Company), 1999; Thomas L. Haskell, “Objectivity in Not Neutrality: Rhetoric versus Practice in Peter Novick’s That Noble Dream,” in Objectivity is Not Neutrality: Explanatory Schemes in History by Thomas L. Haskell (Baltimore: John Hopkins University Press, 1998), 145-173; and Keith Windschuttle, The Killing of History: How Literary Critics and Social Theorists are Murdering Our Past (San Francisco: Encounter Books), 1996.
(16) Susan Haack, “Concern for Truth: What it Means, Why it Matters,” in The Flight From Science and Reason, ed. By Paul R. Gross, Norman Levitt, and Martin W. Lewis (New York: The New York Academy of Sciences, 1996), 61.
(17) Eric Lipton and Brooke Williams, “Researchers or Corporate Allies? Think Tanks Blur the Line,” The New York Times (August 7, 2016) http://www.nytimes.com/2016/08/08/us/politics/think-tanks-research-and-corporate-lobbying.html (accessed August 8, 2016).
(18) Another example of how some of these groups operate to influence public policy see Ken Silverstein, “They Pretend to Think, We Pretend to Listen: Liberalism in the tank,” The Baffler (2013) http://thebaffler.com/salvos/they-pretend-to-think-we-pretend-to-listen (accessed August 9, 2016)
(19) For an explanation of how this was done see Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (New York: Bloomsbury Press, 2010).
(20) “Think Tanks and the Influence of Corporate Dollars: Journalists Need to be More Skeptical of Experts,” The New York Times (August 10, 2016) http://www.nytimes.com/roomfordebate/2016/08/10/think-tanks-and-the-influence-of-corporate-dollars/journalists-need-to-be-more-skeptical-of-experts.
(21) Quoted in Jane Mayer, “How Right-Wing Billionaires Infiltrated Higher Education,” The Chronicle Review (February 26, 2016), B9.
(22) “With $5.5 million from the Olin foundation, as well as large donations from foundations tied to Scaife, the Kochs, and other conservative legacies, the Federalist Society grew from a pipe dream shared by three ragtag law students into a powerful professional network of 42,000 right-leaning lawyers, with 150 law-school campus chapters and about 75 lawyers’ groups nationally.” (Mayer, “How Right-Wing Billionaires…” B10).
(23) Amanda Hollis-Brusky, Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford: Oxford University Press, 2015), 2.
(24) Ibid., 5 & 168.
(25) Mayer, “How Right-Wing Billionaires,” B10.
(26) Hollis-Brusky, Ideas With Consequences, 7.
(27) https://www.lc.org/ (accessed 7/24/16).
(28) http://www.cpjustice.org/public/page/content/about_us (accessed 7/24/16). Lew Daly, God’s Economy: Faith-Based Initiatives & the Caring State (Chicago: University of Chicago Press, 2009), 119-122.
(29) “Leaps of Faith,” The New York Times (March 1, 2012).
(30) Post & Siegel, “Originalism as a Political Practice,” 572.
(31) Ibid., 567.