Forms of Originalism and the Study of History

Article excerpt

I will discuss two different kinds of originalism and the demands they place on the discipline of history.

I was an eyewitness to the development of the first kind of originalism, which I will call Originalism Mark I. In the fall of 1977 at the Yale Law School, I was a first-year law student taking Constitutional Law I from Robert Bork. Bork was rejecting the gods of the city, bringing in new gods, and corrupting the young. He was creating Originalism Mark I, which we associate primarily with him and Antonin Scalia, and I was able to see either its beginning or middle stages first hand.

Originalism Mark I has several features that are fundamental to understanding it and to understanding the way it seeks to draw on historical knowledge. First, it began in the rejection of judicial subjectivity. That factor, more than any other, drove this form of originalism. The early originalists found it absurd that judges were making significant policy choices given the manner in which they are selected. They also found it impossible to explain what judges had been doing for the preceding twenty or thirty years unless the judges had been making choices that reflected their own views of desirable results and not general, impersonal legal principles. (1) I call the phenomenon against which the originalists reacted judicial subjectivity to emphasize the point that when there is judicial subjectivity the identity of the judges, and in particular the political and ideological views of the judges, matter enormously for the content of the law. (2)

The intuition, that judicial subjectivity was rampant and very bad, got Originalism Mark I going. Nothing more systematic or methodological lay behind it, and there was nothing in the original impulse that pointed specifically toward originalism.

Let me summarize briefly the case against judicial subjectivity. It comes in static and dynamic forms. The static form is that federal judges are selected indirectly and serve for life, which makes their tenure undemocratic (originalists are obsessed with unallocated federal judges even though most American judges are not federal and are not unallocated). If we believe that policy should reflect the electorate's view, such undemocratic process is inappropriate.

History is more ironic than any fiction can be, and one of the fine ironies here is that the principal example for the dynamic case against judicial subjectivity is the controversy over the nomination of Robert Bork. As Justice Scalia remarked in a related context, the American people love democracy, and if they discover that Supreme Court Justices are policymakers, they will demand that the making of Justices become more democratic, which is to say more political. (3) The results were on display in 1987.

In the development of Originalism Mark I, the natural question is why would a rejection of judicial subjectivity, and in particular of judicial subjectivity as practiced by the Warren and Burger Courts, lead someone to become an originalist? The answer must be speculative, especially if the connection is not one of substance, but of historical accident (or not of logic, but of experience). Consider some of the Warren and Burger Courts' most controversial decisions, such as those concerning legislative apportionment, the death penalty, abortion, and sex discrimination. (4) All of the decisions represented striking departures from seemingly well-settled principles. Legislative malapportionment, like the death penalty, was as old as the Republic, and although both had been subject to much criticism, neither had been thought of as a constitutional problem. (5) In similar fashion, abortion had been a crime for many decades, and while that too had been controversial, it apparently had not occurred to anyone that the prohibition might be unconstitutional. (6)

Then, like a bolt from the blue the Supreme Court, in the course of little more than a decade, decided that there was something wrong with these long-standing practices. …