The Failed Promise of Originalism

The Failed Promise of Originalism

The Failed Promise of Originalism

The Failed Promise of Originalism

Synopsis

Originalism is an enormously popular- and equally criticized- theory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, "We are all originalists." Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism.

The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice.

Excerpt

Originalism, the theory that the Constitution should be interpreted according to the meaning or intent of the drafters, has great appeal to Americans. At one time closely associated with the conservative movement, originalism is now commonly held as an important, if not the exclusive, device for interpreting the Constitution. This has not been our historic practice. Over thirty years ago, Munzer and Nickel (1977, 1029) wrote that “one does not have to dig very deeply into the literature of American constitutional law to suspect that many constitutional provisions do not mean today what their framers thought they meant.” Yet originalism still has great appeal.

A large number of Americans say they believe that Supreme Court justices should interpret the Constitution solely based on the original intentions of its authors (Greene 2009c, 695–696). In the legal academy, the amount of ink devoted to originalist theory is enormous. The revival of originalism is evident at the Court level. One quick survey found that in 1987 analysis of history figured in only 7 percent of the constitutional cases . . .

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