Academic journal article Harvard Journal of Law & Public Policy

What's the Point of Originalism?

Academic journal article Harvard Journal of Law & Public Policy

What's the Point of Originalism?

Article excerpt

I. EMBRACING ORIGINALISM

As of late, a remarkable array of constitutional theorists have declared themselves originalists of one sort or another,* 1 and no one is quite sure why. (2) Or, perhaps more accurately, everyone is sure, but they all disagree with each other. For some, the originalism command springs directly from the text itself: it is a written Constitution, and the original meaning of the text itself is the law of the land; (3) for others, such as Justice Scalia, it is the best (and perhaps only) way to restrain judges from reading their own values and policy preferences into the Constitution; (4) and, for the philosophically inclined, Paul Grice, Ludwig Wittgenstein, and other modern, usually European, philosophers of language provide scholars with deep and complex insights into how to understand the Constitution; (5) and so on. (6) In recent years, various New Originalist arguments have led to the ascendency of the objective meaning of the text itself over the intentions of its authors, which was the focus of the now much-derided Old Originalism of the "undertheorized" past. (7) The result is that many scholars now prize the views of an average person, or a hypothetical ratifier with full knowledge of all of the relevant circumstances (8)--someone best described as a time-traveling law professor--in place of the actual intentions of the constitutional Framers.

The idea that the British Paul Grice or Ludwig Wittgenstein, a Viennese philosopher born at the end of the nineteenth century, may have more to say about the meaning of America's founding document than, say, James Madison, the "Father of the Constitution," (9) exposes these constitutional theorists to the significant risk that they are cutting themselves off from one of the most important audiences for Supreme Court opinions: the public. This concern over the potential for excessive theorizing arises because the public holds the Framers and their intentions in considerably higher esteem than do the New Originalists. Ignoring what the Framers were actually trying to accomplish when they wrote the constitutional text may not trouble today's New Originalists. Vasan Kesavan and Michael Stokes Paulsen, for example, call the work of the Convention, where the Framers hammered out the final language of the Constitution, "dead words on paper." (10) The public has a different view. A newly commissioned survey shows that over ninety percent of the public thinks that the Constitution's original meaning should play at least some role in the Court's decisions, with a full two-thirds citing the Framers' intentions as the single most important source of that original meaning. (11) And the Supreme Court, which keeps its audience in mind, especially in deciding high-profile constitutional cases, will almost certainly make a point of explaining how it reached its understanding of the Constitution in a way that is designed to appeal to the public.

II. WHY DO WE HAVE SUPREME COURT OPINIONS?

Although we have come to expect the Court to explain its rationale in lengthy opinions, it is worth noting that nothing in the Constitution actually obliges the Justices to give reasons for their decisions. The early Supreme Court, which was composed of an impressive collection of Framers and ratifiers, rarely issued formal written opinions (or any opinion at all). (12) In fact, when we now read what looks like the opinions of the Justices from the first decade or so of the Court's decisions, we are generally seeing notes taken down by a lawyer such as Alexander Dallas or William Cranch, whose business was to publish and sell copies of the notes to other lawyers. (13) In many cases, there were no official statements of the Court's reasoning at all, (14) and, where we do have seriatim opinions, they represent each Justice's comments on the case--usually brief ones, as far as we can tell. (15) Only when John Marshall became Chief Justice and, in particular, as he successfully built the Court into a significantly more powerful political entity, did the Court begin issuing formal opinions. …

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