Two (More) Problems with Originalism

By Kramer, Larry D. | Harvard Journal of Law & Public Policy, Summer 2008 | Go to article overview

Two (More) Problems with Originalism


Kramer, Larry D., Harvard Journal of Law & Public Policy


In this Essay, I wish to offer two simple points. The first is that originalist arguments misconstrue history, and the second is that there is no such thing as pragmatic originalism--to the contrary, originalism is by definition unpragmatic and at odds with legal pragmatism.

To understand why being an originalist works only if one ignores or misstates history, we must look briefly at the history of originalism. Some notion of originalism, understood as the theory that the Framers' or Founders' thoughts regarding the Constitution are relevant to constitutional interpretation, has been part of the legal landscape for a very long time, appearing as early as the 1790s. (1) But originalist constitutional interpretation as a discipline--that is, as a distinct subject with a distinct methodology--actually came into being only in the late nineteenth century. (2) Legal treatises and other works on the Constitution written before that time did not contain originalist theories of interpretation. The treatises discuss particular interpretations and offer descriptions of the proper or best understanding of particular clauses, but it took some time before people began to think about the problem of interpretation more broadly and systematically. For most of the nineteenth and early twentieth centuries, even as the problem of interpretation emerged, the main controversy concerned how much deference courts should give to legislatures. (3) The debate was about who should interpret, not how to interpret. When it came to the question of how to interpret the Constitution, there was general agreement on a kind of conventional approach that mixed different arguments without much systemization--something very much like the mix of arguments lawyers use when interpreting statutes or common law. (4) The Framers' intent was one of these arguments, used alongside text, precedent, and policy, but not superior to them. (5)

The idea of originalism as an exclusive theory, as the criterion for measuring constitutional decisions, emerged only in the 1970s and 1980s. (6) The theory first appeared as "original intent originalism," and it looked to what the fifty-five men who drafted the Constitution in Philadelphia intended when they framed the Constitution. (7) That originalism first emerged in this guise is hardly surprising, given that the most readily available evidence about the origins of the Constitution's provisions consisted of notes from the Constitutional Convention collected in a neat four-volume set by Max Farrand. (8) Consequently, a great deal of early originalist work asked what the Framers thought they were doing when they wrote this or that clause of the Constitution.

Of course, relying on such evidence was immediately subjected to a strong critique that I think everybody is probably familiar with. The sparseness of the evidence was said to leave every question indeterminate. (9) Some people found this sort of argument persuasive, others did not. But a more powerful critique of original intent soon emerged, this one arguing that relying on Framers' intent could not be justified as a normative matter. (10) The intent of the drafters in Philadelphia does not matter, this critique argued, because the Constitutional Convention had no lawmaking authority. The underlying premise of originalism is one of positive law: the Constitution is a species of legislation, authoritative only because and insofar as it was enacted by an authoritative lawmaker. As such, the authoritative intent is that of the people who had the power to make it law, not of the people who drafted the Constitution in Philadelphia. (11) Looking to their intent is like giving authority to a speech writer for the President. It is like giving authoritative weight to the intent of the lobbyists who drafted a bill for Congress, as opposed to the Congress that actually adopted it.

This was a pretty devastating critique, and it required a response.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Two (More) Problems with Originalism
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.