I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism, justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quoting Justice Brennan, the judge's "personal confrontation with the well-springs of our society."
My thesis is that there is a third option, which I will call conventionalism. Conventionalism draws much of its inspiration from the writings of a British politician and man of letters, Edmund Burke. I will argue that there is a Burkean or conventionalist approach to interpretation that is distinct from both Borkean originalism and from the various types of nonoriginalism favored in the legal academy, which I will lump together under the label normativism. I will also argue that the conventionalist approach can be justified by the same conservative values – the rule of law, promotion of democracy, and so on – that are commonly invoked in support of originalism. Indeed, I will go further and maintain that conventionalism does even better than originalism when considered in light of these values. My thesis, in short, is that the choice is not just Bork v. Brennan. It is also Bork v. Burke. And, at least for someone who puts a lot of stock in conservative values, Burke beats Bork.
Thomas W. Merrill,
Bork v. Burke,
Harv. J. L. & Pub. Pol'y
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/834