Academic journal article Brigham Young University Law Review

Talking Originalism

Academic journal article Brigham Young University Law Review

Talking Originalism

Article excerpt

I. INTRODUCTION...................................................................... 847

II. INTERPRETATION .................................................................. 849

III. DEMOCRACY........................................................................ 852

IV. CONSTRAINING JUDGES....................................................... 857

V. CONSEQUENCES .................................................................... 865

VI. STABILITY............................................................................. 869

I. INTRODUCTION

What is old is new. Twenty-five years ago, commentators were declaring originalism dead.1 Yet today the law reviews are positively awash with it. The New Originalism.2 Semantic Originalism.3 Pragmatic Originalism.4 Redemptive Originalism.5 Even "Simpleminded Originalism."6 Nor is the trend limited to the academy. In one of the most anticipated decisions of recent years, District of Columbia v. Heller? all nine Justices joined originalist opinions, including a majority opinion one prominent academic originalist has called "the finest example of . . . Original public meaning' jurisprudence ever adopted by the Supreme Court."8 In light of this resurgence, the chief arguments for and against originalism are ripe for critical re-examination.

The following dialogue provides such an examination. For the most part, the arguments it presents are not new. But until now, they have been scattered through a voluminous literature, spanning several decades. One purpose of this dialogue is simply to collect them in a single place. A second purpose is to examine them afresh, which, for long-running debates like this one, is worth doing at least a few times every generation.9 To this end, I have made one of my fictional interlocutors an intelligent layperson, reasonably well informed about history and politics, but unafraid of asking questions a lawyer (not to mention a constitutional theorist) might be inclined to dismiss as obvious. The result is to refocus attention on three central factors that have received too little discussion in the recent literature: the extreme age of most constitutional provisions; the extreme difficulty of constitutional amendment; and the need to justify legal arrangements - including constitutional arrangements - by reference to consequences. Many subsidiary issues are cast in a new light along the way.

Like Henry Hart's classic dialogue on the power of Congress to control federal jurisdiction, my goal is "not to proffer final answers but to ventilate the questions."10 As will soon be obvious, however, I do not pretend to anything like perfect neutrality.11

II. INTERPRETATION

Q: What is originalism, anyway?

A: That is complicated. Very briefly, originalists believe that judges should interpret the Constitution to mean what it was understood to mean at the time it was ratified. In fact, many originalists argue, originalism is the only approach deserving of the name "interpretation."12 Judges employing other approaches don't mine the Constitution for meaning, as interpretation implies; they make their own.

Q: That seems dead on. When historians interpret the Articles of Confederation or the Declaration of Independence, they are interested in the meaning of those documents at the time they were drafted.13 Why should constitutional interpretation be any different? Of course, other people might be interested in the meaning of those documents to contemporary Americans. But that's a sociological inquiry, not an interpretive one.

A: So many originalists claim. But this is argument by definitional fiat. It is an attempt to resolve a normative debate about how judges should decide constitutional cases through redefinition of a normatively charged term - in this case, interpretation.

Q: I'm not sure I follow.

A: It's like this. There is broad agreement that judges should interpret, rather than make, the law. …

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