Are Originalist Constitutional Theories Principled, or Are They Rationalizations for Conservatism?
Fallon, Richard H., Jr., Harvard Journal of Law & Public Policy
My topic is whether originalism, and in particular the form of originalism that might be thought to constitute Originalism 2.0, is "a rationalization for conservatism, or a principled theory of interpretation." (1) This question includes at least three parts: First, what is originalism? Second, are particular varieties of originalism capable of being, or likely to be, applied in a principled way? Third, are most or all varieties of originalism "rationalization[s] for conservatism"?
My answer to the first of these questions frames my answers to the second and third. Although it is customary to speak of originalism as a single constitutional theory, even a cursory review of recent scholarship reveals that the range of originalist theories has grown startlingly broad and diverse and is becoming more so all the time. (2) So great are the differences among originalist theories that I question the premise that we can talk meaningfully about Originalism 2.0 and whether it is a principled theory or a rationalization for conservatism. It would be more accurate to say that there are multitudinous rivals for the title of Originalism 2.0 and that whether these competitors are principled can only be answered on a theory-by-theory basis.
When assessment proceeds accordingly, a striking feature of many originalists' theories is their vagueness or indeterminacy. The vagueness of many originalist theories bears vitally on the second question, involving whether originalist theories are likely to be applied in a principled way. As a generalization, versions of originalism that are not well specified allow more opportunities for ideologically motivated manipulation to achieve conservative results than would more fully specified versions. By itself, this conclusion is hardly surprising. What may be less obvious is that originalist theories that are rigorously defined in advance, thus to avoid case-by-case inconsistencies in application, may be more prone to generate disturbing or even calamitous results than are originalist theories that leave more room for discretionary judgment. Originalists may therefore have good reason not to want to bind themselves too rigidly to a methodological mast.
With regard to the third question, however, the more methodological discretion that originalist theories authorize, and the more that practitioners of those theories exercise their discretionary judgment to justify substantively conservative conclusions, the better the charge that originalist theories are "rationalization[s] for conservatism" appears to fit. Suspicions of rationalization are also in order insofar as originalists maintain that the case for adopting an originalist theory is entirely independent of the theory's conservative valence. (3)
I. WHAT IS ORIGINALISM?
For a long time, self-identified originalists and non-originalists alike have tended to speak as if originalism were a single theory. (4) Recent scholarship has revealed the fallacy of this assumption. (5) There are multiple strands of originalism, with additional versions proliferating as rapidly as law reviews can publish them. The various originalist theories differ from each other along at least four dimensions, involving: (1) the historical object or phenomenon that originalist judges or scholars should seek to identify--the Framers' intent, the original understanding of a specified group of lawmakers, or the original public meaning of constitutional language; (6) (2) the conclusiveness of originally expected applications of constitutional language in fixing the Framers' intent, the original understanding, or the original public meaning; (7) (3) the degree of determinacy with which historical sources can be expected to fix historical meaning and the role of judges in cases of relative indeterminacy; (8) and (4) the circumstances, if any, under which non-historical considerations such as stare decisis, prudence, and apprehensions of normative desirability can justify constitutional decisions other than those that a purely historical criterion of constitutional meaning would mandate. …