"The Originalist" Doesn't Make Its Case

Review of Open Window Theatre's production of John Strand's play.

It’s been a minute since De Civitate’s last media review, but I’ve wanted to see The Originalist for years, ever since it premiered in Washington and I read a (surprisingly positive) review in the New York Times. When I found out the play was finally coming to the Twin Cities, I jumped for joy. I had a lot of thoughts after seeing it last night, and the play is squarely in De Civ’s wheelhouse, so, what the heck, let’s dust off my critic hat and see if it still fits.

In John Strand’s The Originalist, there are only three characters, only two of them matter, and only one of them is based on a real person:

1. Justice Antonin Scalia. When described as “probably the most divisive and reviled figure in American civic life,” this version of Scalia joyously replies, “Completely wrong! Strike the ‘probably’! I hold the title!”

2. Cat, a pugnacious Black woman, a self-described “flaming liberal” who considers Scalia a monster—but who nevertheless seeks (and gains) a clerkship under Scalia during the 2012-2013 term in order to learn why and how Scalia is so “vile.”

3. Brad, a slimy Beltway Republican dudebro straight out of the pages of Republic(an) serial villainy.

The play’s center of gravity is a series of arguments between Scalia and Cat about the meaning of the law and how it ought to be applied by the judiciary. This is a risky course for a play to take. We already have plenty of arguments. If you want a really good argument, go read a contentious decision by the actual Supreme Court. It’ll take less time, and it’s a lot cheaper than a night at the theatre! The theatre is there, rather, to help us explore the human heart.

As Flannery O’Connor put it, fiction is about “the action of grace on a character.” Drama emerges because “all human nature vigorously resists grace because grace changes us and the change is painful.”¹ For O’Connor (not to mention Scalia) the most important source of grace is God, but grace can also be offered by a ferociously smart law clerk, or by a famed 76-year-old jurist. Once offered, grace can be accepted or rejected, and this is a great mystery. You can read about the Laws of Physics or the Laws of Economics in a textbook, but there is no textbook for the Laws of Choice. For the mysteries of the human heart, there is only fiction. I adore a dramatic debate, but that mystery is what the theatre is for.

Heidi Schreck’s What The Constitution Means To Me (which played last season at the Guthrie) also structured itself around constitutional debates. Schreck took this to such extremes that one realized (about halfway in) that What The Constitution Means To Me is not a play at all. It’s a very lengthy, carefully staged monologue—at times, a harangue—and therefore fails as a play. It might change your mind, but What The Constitution Means To Me could never change your heart.²

Fortunately, The Originalist does not go quite so far as that. While built around a series of impassioned legal arguments, there are characters behind those arguments, who grow—painfully—over the course of the story. (Except Brad. Brad sucks.) Open Window Theatre’s production, playing now through October 30th, brings all three to life.

Look, I write here at De Civ largely about constitutional law. Nobody will confuse me with an acting critic, so you’ll have to take my word for it: the cast in this production is stellar. Brad sucks, but Jonah Smith makes us love how very much Brad sucks. He oozes brotard privilege and naked ambition disguised as “principled conservatism” from every pore and makes it look so much easier than it is.

Local theatre veteran James Ramlet (the Guthrie’s Ghost of Christmas Present for two seasons, and a regular at Theatre Latté Da) does great work presenting Scalia as a happy warrior. I’ve read complaints that other productions of The Originalist struggled because, when Scalia shows concern for Cat’s personal struggles late in the play, it seemed like an abrupt transformation. Not so at Open Window. Even as Ramlet’s Scalia sneers the word “liberal” like a particularly vicious swear, it’s clear he’s just relishing the battle, that he knows where the argument ends and the human begins. Ramlet makes us see that, even when the dialogue doesn’t.

Kalala Kiwanuka-Woernle (as Cat) was my favorite of the trio. Her character has signed up to be the punching bag of a vastly senior, vastly more experienced, vastly more notorious (and celebrated) individual. Her job is to punch back—but only on her employer’s terms. This is an impossible position. I found it hard to take my eyes off Kiwanuka-Woernle whenever she was on stage. When she throws a punch, she hangs in Scalia’s (and Ramlet’s) formidable weight class, portraying outrage without ever crossing into hysteria. When decorum means she can’t throw that punch, though, it’s almost more fun: she practically vibrates with the tension. Stephen O’Toole’s immersive direction means, delightfully, we get to see her boxing matches with Scalia from every conceivable angle.

The script tries to view their disagreement from every conceivable angle, too… and that, I think, is the script’s central flaw.

“October Term 2012” was a real year at the Court, featuring some pretty major cases: United States v. Windsor (striking down the Defense of Marriage Act), Hollingsworth v. Perry (dodging the question of same-sex marriage), Shelby County v. Holder (a case on the Voting Rights Act that could create some very pointy questions for an originalist), and Fisher v. University of Texas at Austin (limiting but upholding affirmative action). One of the beautiful things about American courtrooms is that they never consider a question in the abstract: every case they hear involves actual litigants—real people—who have a particular dispute, with particular facts, a particular story. The judge’s job is to apply the abstractions of the law to those particular facts, but it’s a two-way street: the facts of a particular case help shape both the judge’s and the public’s understanding of the law’s exalted generalities.

So it was surprising that Mr. Strand chose to completely ignore those cases and their stories. Throughout, Scalia and Cat argue at the highest level of abstraction. Scalia literally has Cat draw numbered cards from a deck and hold forth, broadly, on the meaning of the corresponding amendments—at least for a few seconds, until he interrupts her. Why? Why would a justice take a clerk into a private meeting to shout ineffectually about the Eighth, Second, and First Amendments in a vague sense when there’s actual cases to shout about? (Supreme Court law clerks are extremely busy!) Why would the playwright ask the audience to vaguely consider the Second Amendment without concrete examples of the humans affected by rulings one way or the other?

When Strand’s Scalia does bring home the facts of a case, it’s a knockout blow. Cat attacks the abstract principle of 1989’s Stanford v. Kennedy (upholding the death penalty for sixteen-year-olds), but Strand’s Scalia responds with a blistering recitation of the facts of the case, both before and after the ruling, that reduces Cat to silence. Telling the story of the case makes effective drama! Yet even when Strand chooses to make a conflict over United States v. Windsor the climactic battle of his play, he never once introduces us to the actual person at the center of the case, Edith Windsor, nor to the social forces that had led Congress to enact the Defense of Marriage Act in the first place.

Mr. Strand might plead that he made a deliberate choice to leave out the particulars in order to avoid biasing the audience one way or another. To be sure, many people would find it very difficult to even consider Scalia’s position if they knew the details of Edith Windsor’s plight—and I say that as someone who solidly agrees with Scalia’s position in that case! Mr. Strand seems to have wanted his play to be about legal principles, not about which litigants pluck at our heartstrings.

But if he wanted the play to be about legal principles, he should have done a better job explaining them. Scalia and Cat’s jabs about the Constitution are vivacious, clever, funny, tons of fun to watch… and as deep as a puddle. Naturally, as an originalist-textualist, I am inclined to complain about all the arguments Scalia left on the shelf whenever the play decided it was Cat’s turn to score a point… but then it turned around and did the same thing to Cat whenever the play decided it was Scalia’s turn to score a point. For a play called The Originalist, there is shockingly little discussion of originalism as a judicial philosophy, because the play is busy flitting between the details of half a dozen constitutional amendments and old court cases. In a typical argument, the script allows each of the combatants to make one perfunctory constitutional argument you can find on a spammy “study guide” on the second page of Bing search results (“The right of the People to bear arms!” “Yes, when organized in a militia!”), then rings the bell after the first punch, declaring a winner based on whose fist was wittiest. There is something to be said for the dramatic value of keeping arguments short and shallow (not to mention simple, so the lay audience can follow along). That gives you room for the important dramatic work. But The Originalist doesn’t do that! It abruptly cuts off arguments just to make room for other shallow arguments!

Every review of every production of The Originalist seems to have a line that starts with something like, “While no one in the audience is likely to change their minds about the Constitution…” Of course not! Strand’s Scalia seems to just take it on faith that originalism is correct and that judges can never update the Constitution. When confronted about the implications of his static Constitution, he doesn’t breathe a word about the Article V amendment process (and the many important amendments we’ve made over the centuries), about the role of the judicial branch in our federal scheme of separated powers, about the essential relationship between dead text and the rule of law (as opposed to the rule of men), about the interpretive rules that guide his understanding. Once or twice, Strand’s Scalia mutters something about “democracy,” but, mostly, he just launches into odes to the greatness of America’s Founding Fathers and the perfection of our Constitution, dodging questions about their (many) errors—particularly the Fathers’ errors regarding Blacks, women, and Black women like Cat.

Scalia, I am confident, would not have done this. Firstly, as he well knew, a whole lot of the Constitution was not written by the Founding Fathers! Secondly, while Scalia loved the Constitution, he knew that his job wasn’t to love it; his job was to faithfully apply it, and you can faithfully apply a document you disagree with.³ In a must-read interview the real Scalia gave during the year when this play is supposedly set, he said:

[I]f a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.

Thirdly, originalism isn't about reverencing the particular people who wrote a law, not even the Founding Fathers. Originalism is about reverencing the final authority of We The People to frame their own laws—instead of having the laws framed for them by nine unelected, unaccountable philosopher-kings.

We could have seen this single line of argument—the fundamental question of American constitutional law—developed over a hundred minutes. There’s plenty of rebuttals out there to put in Cat’s mouth. I, for one, would have loved to see her bringing Thomas Colby’s anti-originalist arguments to a broad audience. Audiences can follow a single sustained and developing argument over the course of an hour or more, if you ask nicely and guide them carefully through each stage of that argument. Look at Twelve Angry Men, how it gradually spools out information about the trial and the other jurors. Heck, look at What The Constitution Means To Me: it’s a bad play, but it’s a pretty good speech on a pretty complicated subject! Instead, The Originalist dances through flashy but unenlightening exchanges about trifles like “the canonical cases objection” without ever even giving a good, clear example of how an originalist and a living constitutionalist interpret an identical text differently. Without the space to explain Scalia’s actual thinking, Strand’s script falls back on tired tropes, implying that Scalia’s whole Founder-worship thing is just a “shield” for a strain of unadmitted religious bigotry. Here, the gap between Scalia-the-character and Scalia-the-actual-person becomes most obvious.

The brisk approach does as much disservice to Cat’s progressive living constitutionalism as it does to Scalia’s textualism. While Scalia’s textualism seems incoherent in Strand’s play, Cat’s approach to law is that of a child: “the Constitution means whatever I want it to mean.” While all of us originalist-textualists do think that, ultimately, that’s what living constitutionalism boil down to, actual practicing living constitutionalists do a much better job defending their position than Cat ever does! Cat, in making the case for same-sex marriage during U.S. v. Windsor, spends a lot more time appealing to a vague notion of Whig history than she does to the Equal Protection Clause—and never once quotes, or even mentions, the liberty clause of the Fifth Amendment, which was the actual basis of decision in U.S. v. Windsor. The arguments in The Originalist create a lot of heat, a lot of excitement, a lot of entertaining sparks… but they cast precious little light on their putative subject matter.

The play’s shining moments, then, are in the interstices between the arguments. When Scalia teaches Cat to shoot a gun, when Cat’s father takes a turn for the worse in the hospital, when Scalia physically falls during a particularly fierce argument and Cat rushes to him, when Scalia tries to save Cat’s soul with the Latin Mass, when Cat feels she ought to tell Scalia something she has kept secret from him… these concessions to the demands of character are The Originalist’s saving grace. My favorite moment in the play is when Brad brazenly tempts Cat with money, power, and adulation (from people like me, no less!), if she will just do one small thing—and Cat is clearly, horribly tempted. It’s clear, in that moment, that she could say “yes” or “no”; that she could accept grace or reject it. That is what makes Cat a human character, not an ideological mouthpiece like the actors in What The Constitution Means To Me.

To be sure, there is nothing particularly original about the plot of The Originalist, nor indeed space for anything complicated amid all the loud arguments, but these interstices (brought to life, again, by a great cast) are enough to open our hearts… even if the arguments themselves are too flighty to open anyone’s minds.

I fear I have been too hard on the play’s approach to law, and that you will now be discouraged from seeing it. Please don’t be. You will note that, even where I’ve derogated the play’s legal substance, I can’t help describing its style as “flashy” and “entertaining.” You will have a very pleasant evening at Open Window’s The Originalist. You will laugh. You will care about the characters. This is not a decadent, morally empty work of zombie art like Spider-Man: No Way Home. It’s an ambitious work of art that falls short in some ways. Just don’t expect anyone in the audience to change their minds about the Constitution, and you’ll have a lovely time.

Ultimately, Mr. Strand wants us, as a people, to “meet in the middle,” to stop regarding one another as monsters, to discover the human hearts on the other side and to love them, even through disagreement. The middle, he argues, is a place of courage. (We know that’s what he thinks because the only person to question it on stage is the awful Brad, who calls the middle a place for the “testicularly challenged.”) Strand is right: the impulse today is to preach to our own choirs, to recoil in horror from anyone who disagrees with us about matters of life and death. We urgently need to learn how to repress that gag reflex, and Strand wants to teach us how. In The Originalist, he finds some success, at times despite himself.

But we don’t meet in the middle by giving one another short shrift. It’s not enough to admire our opponent’s wit and kindness; we will never meet in the middle before we fully understand each other. Exalting the middle by diminishing the extremes is not helpful, because it is not honest. We have to see one another’s arguments in all their magnificence, see them so clearly that we can make the arguments as persuasively as our opponent. When one structures a play around such arguments, they must accomplish this at all costs. In The Originalist, they don’t.

Open Window Theatre’s production of The Originalist plays in Inver Grove Heights (MN) through October 30th. Tickets are $28 (discounted for students / seniors / veterans / clergy), and can be purchased online at OpenWindowTheatre.org.

1. This is a rather generous stitching-together of two disparate Flannery O’Connor quotes, from The Habit of Being’s letters of 4 April 1958 and 9 December 1958.

I did not butcher her more famous line from Mystery and Manners’ “On Her Own Work”: “My subject in fiction is the action of grace in territory held largely by the devil.”

2. Also, the ideas in What the Constitution Means To Me are mostly very stupid, but that’s not my point. Even if the ideas were replaced with good ideas, it still wouldn’t be a good play.

3. Shut up, James-from-ten-years-ago; you went too far on not enough in that one, and you kinda knew it even at the time.