Academic journal article
By Segall, Eric J.
"I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor...."(1) INTRODUCTION Almost one hundred years ago, Professor Arthur W. Machen published an article in the Harvard Law Review called The Elasticity of the Constitution.(2) In this two-part article, which until now has been buried in history,(3) Professor Machen explored the relationship between a fixed Constitution and an ever-changing society and advanced three propositions about originalism and constitutional interpretation. First, judges must attempt to ascertain the original meaning of the Constitution whenever they exercise judicial review.(4) Second, a political practice determined by judges to be constitutional may later be invalidated by judges, and vice-versa, because the facts to which the original principles are applied are constantly changing.(5) Third, the Framers might originally have believed that the meaning of vague constitutional provisions, like the Eighth Amendment's ban on "cruel and unusual punishments," would not be fixed as of the date of enactment, but should be fleshed out by judges over time according to the values of succeeding generations.(6) Professor Machen's article demonstrates that he was what modern scholars refer to as a "sophisticated" originalist.(7) He believed the examination of original meaning is not the search for what the Framers specifically had in mind when they drafted the text, but rather for the general and reasonable meaning of the language they used.(8) Moreover, Professor Machen knew there would be many constitutional questions originalism cannot answer.(9) In such cases, judges must turn to other "rules of construction" and "positive law," which inevitably provide them significant discretion to determine the proper results in difficult cases.(10) This essay argues that the academic debate over the legitimacy of originalist and non-originalist constitutional interpretation has not progressed materially since Professor Machen's article.(11) Furthermore, a review of his work teaches us that originalism does not lead inevitably to active or passive judicial review; that questions about originalism as an interpretive tool are largely irrelevant to how judges decide real cases; and that there is little reason for scholars to continue to argue about the proper role of original meaning in constitutional interpretation.(12) That role should be as clear to us as it was to Professor Machen--judges refer to the original meaning of the Constitution to provide an important link to our past culture and traditions, but the original meaning rarely dictates results in real cases because the context within which that meaning is applied is constantly changing. The first part of this Essay supports these points by comparing Professor Machen's article to a recent argument among two of our most prominent legal thinkers, Justice Antonin Scalia and Professor Ronald Dworkin.(13) This comparison demonstrates that the debate over originalism has not moved forward in almost one hundred years. The second part of this essay discusses the academic debate over originalism and desegregation. This debate, perhaps more than any other, illustrates the futility of scholarly attempts to criticize or justify important Supreme Court decisions on an originalist basis, and supports my thesis that there is little reason for scholars to continue to argue about the appropriate role of original meaning in constitutional interpretation. I. THE ORIGINALISM DEBATE A. ARTHUR W. MACHEN In 1900, there were only three university-affiliated law reviews--the Harvard Law Review, the Yale Law Journal, and the American Law Review, which was the predecessor to the University of Pennsylvania Law Review. As of that year, there had been only a handful of articles ever written on the subject of constitutional theory.(14) Nevertheless, Professor Machen's article exhaustively explored the originalism question. …