Article excerpt

In introducing these essays devoted to the philosophy of constitutional interpretation known as originalism, it would be foolish to pretend that that philosophy has become (as it once was) the dominant mode of interpretation in the courts, or even that it is the irresistible wave of the future. The interpretive philosophy of the "living Constitution" (1)--a document whose meaning changes to suit the times, as the Supreme Court sees the times--continues to predominate in the courts, and in the law schools. Indeed, it even predominates in the perception of the ordinary citizen, who has come to believe that what he violently abhors must be unconstitutional. It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from such a seductive and judge-empowering philosophy.

But progress has been made. Twenty years ago, when I joined the Supreme Court, I was the only originalist among its numbers. By and large, counsel did not know I was an originalist--and indeed, probably did not know what an originalist was. In their briefs and oral arguments on constitutional issues they generally discussed only the most recent Supreme Court cases and policy considerations; not a word about what the text was thought to mean when the people adopted it. If any light was to be shed on the latter question, it would be through research by me and my law clerks. Today, the secret is out that I am an originalist, and there is even a second one sitting with me, Justice Clarence Thomas. Rarely, nowadays, does counsel fritter away two out of nine votes by failing to address what Justice Thomas and I consider dispositive. Originalism is in the game, even if it does not always prevail.

Sometimes, moreover, it does prevail as in Crawford v. Washington, (2) a thoroughly originalist Supreme Court opinion that brought the Confrontation Clause (3) back to its moorings after twenty-four years adrift in the Sea of Evolutionism had reduced it to nothing more than a guarantee that hearsay accusations would bear unspecified "indicia of reliability." (4) Or in Apprendi v. New Jersey, (5) where fidelity to the original meaning of the Sixth Amendment's jury-trial guarantee put an end to a movement in both state and federal legislation to impose mandatory sentence enhancements (i.e., additional jail time) on the basis of aggravating facts found to be true only by a judge, and by a mere preponderance of the evidence. (6) (Both of these significant cases, by the way, give the lie to the frequently heard contention that originalism is nothing more than a device to further conservative views.) In other cases, even when what I would consider the correct originalist position has not carried the day, the debate between the majority and dissenting opinions has been carried on in originalist terms. (7) Bad originalism is originalism nonetheless, and holds forth the promise of future redemption.

In the law schools as well originalism has gained a foothold. I used to be able to say, with only mild hyperbole, that one could fire a cannon loaded with grapeshot in the faculty lounge of any major law school in the country and not strike an originalist. That is no longer possible. Even Harvard Law School, the flagship of legal education (I can say that because I am a HLS graduate) has, by my count, no less than three originalists on its faculty (no names, please). Twenty years ago there was none. …


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.