Inevitably Selective “Originalism”

In a column worth reading itself as always, Linda Greenhouse points us to this essay by Dawn Johnsen, which sums up the “originalism” con perfectly:

Shelby County, of course, is far from the first example of unprincipled reasoning from an originalist Justice, but it makes the top of my personal list, along with Justice Scalia’s concurrence in Adarand, which similarly held unconstitutional a federal provision designed to benefit racial minorities. Although both opinions deviated from the originalism generally promoted by the Reagan/Meese agenda, they both fulfilled objectives endorsed in that agenda — specifically, the expansion of state sovereignty, the diminishing of congressional authority to enact legislation to protect the rights of racial minorities, and an end to affirmative action.

I agree that, along with Shelby County, Adarand is the case that really gives away the show. You can make an “originalist” argument against the constitutionality of affirmative action at the state level, but it’s the kind of “originalist” argument that strips “originalism” of any meaningful content; everyone’s an “originalist” if you define constitutional principles at a high enough level of abstraction. But the idea that the 5th Amendment was originally understood as prohibiting any racial classifications by the federal government is that rare case where originalism produces a determinate answer: it obviously wasn’t. Which is why Scalia and Thomas have never even tried to make an “originalist” case for reverse incorporation.

In this sense, then, Shelby County doesn’t mark the death of originalism; it represents what originalism, as practiced by its foremost advocates, has always meant.