Thinking about Originalism

By Kesler, Charles R. | Harvard Journal of Law & Public Policy, Summer 2008 | Go to article overview

Thinking about Originalism


Kesler, Charles R., Harvard Journal of Law & Public Policy


If the Federalist Society is associated with a single word, it is "originalism." Although well-known for its noble efforts to encourage freedom of thought and debate in law schools (and among lawyers), the Society's own thoughts and debates have revolved primarily around originalism; and the Society is probably best known for its members' embrace, propagation, and defense of that concept.

In a Federalist Society symposium, Chief Judge Frank Easterbrook once proposed that the opponents of originalism be called "inventionists." (1) The neologism did not catch on, alas. But didn't "originalism" itself have to be invented? It is not a term used by the framers and ratifiers of the United States Constitution, for example, though they knew of course its source words (origin, original, and so on). Those words denote two rather different things: an "original" is closest to the origin (the words were once synonyms), the first of its kind, the oldest example (and thus distinguished from later copies); but to be "original" is also to be new, pathbreaking, creative (and thus not a copy of anything previous). An original can be old or new. As the doctrine defended today by the Federalist Society and by American conservatives in general, originalism is a new term for fidelity to something old, namely, the Constitution.

But liberals and other critics of such originalism will object that that old Constitution was once new; indeed, that it was once the culmination or the terminal moment of a political revolution. They will point out that imitation is the sincerest form of flattery, and that true "originalism" should therefore include approaching the interpretation of the Constitution in a bold, new, creative spirit, even as its framers had approached the Articles of Confederation. (2) In effect, fidelity to the Constitution, properly understood, should mean making it new, surpassing it, leaving it gradually behind in pursuit of more timely and progressive modes of government and administration.

Franklin D. Roosevelt and other liberal political leaders used to talk like that, and appeals to the American founders' pragmatic, forward-looking spirit still echo occasionally in our politics and even in the academy. But such sentiments are rarer than they used to be for the simple reason that modern liberals' opinion of the Constitution and its framers is lower, or at any rate more crudely expressed, than it used to be. (3) Exponents of the progressive or evolutionary Constitution used to emphasize its continuity with the past; evolution, after all, is supposed to connect the best of the past with the present. Today, by contrast, it is common to hear, especially from political figures who do not have to stand for election, that the Constitution comes from "a world that is dead and gone." (4) They mean that the Constitution would be dead and gone, or at least irrelevant, like the eighteenth-century world from which it sprang, had it not been infused with new meaning(s) vouchsafed by subsequent, more enlightened ages.

Since its proximate origins in the Progressive Movement early in the twentieth century, American liberalism has taken a jaundiced view of the Constitution. The most famous of the so-called Progressive historians--especially Charles Beard, Vernon Parrington, and J. Allen Smith--regarded the American Revolution as a nascent social revolution, the beginnings of an egalitarian democratic order that would liberate, and empower, the interests of the vast majority of Americans who were farmers, artisans, and laborers. According to the historians, this powerful impulse towards social democracy arose not so much from the theory of the Revolution as contained, say, in the Declaration of Independence and the colonists' earlier protests against the British parliament, but mainly from the deeds or actions of revolution itself. As the majority discovered its power in street demonstrations and legislative halls, it discovered itself as a social force capable of standing against domestic as well as foreign elites. …

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