(This three part post addresses the new article on Originalism by Berman and Toh. In my first post on this article, I argued that the New Originalism is not primarily concerned with theories of law. Here I move on to Berman and Toh’s discussion of the old originalism.)
Berman and Toh also claim that the old originalists were mainly concerned with theories of adjudication rather than theories of law. Berman and Toh assert that Bork, Meese and Scalia are all focused on constraining judges rather than about the law.
But this claim is also problematic. To begin, Berman and Toh admit that Raoul Berger – perhaps the oldest of the old originalists – had a theory of law. But Bork also (in the Tempting of America) argued that the Constitution was law (and therefore could only be changed by legal procedures). In fact, that might have been his principal argument.
Even Meese in a short speech to which Berman and Tod refer, founds his argument on the fact that the Constitution is law. It is true that he uses that as an argument for why judges are bound by that law, but the basis of his argument is that the Constitution is law.
In addition, old originalist Lino Graglia also has a theory of the Constitution as law, as Berman and Toh admit.
The angry debate about the proper role of the criminal law in drug control does not organize conveniently around the traditional left-versus-right divisions of political geography in the United States. For a generation now, a civil war of ideas has been waged within the American right between libertarian opponents of state drug control and more traditional law and order conservatives. At the zenith of the American drug war around 1990, prominent conservative and libertarian intellectuals provided leadership for extreme state controls (William Bennett, the first drug tsar) and radical deregulation (Milton Friedman). One of the major amusements that liberal criminologists had when visiting drug conferences at the Hoover Institute back then was to witness the passionate division between distinguished law and order resident fellows like Ed Meese and the libertarian Professor Friedman on the ends and means of the American Drug War. Hoover didn’t have to order out for lively differences of opinion on drugs, then or probably now.