Is Originalism Too Conservative?
Whittington, Keith E., Harvard Journal of Law & Public Policy
Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. (1) This is no surprise given the history of modern originalist theory and constitutional politics. Although originalist arguments have a long pedigree, self-conscious originalism in its modern form largely arose as a response to the liberal constitutional decisions of the Warren and Burger Courts. (2) Judges and scholars turned to history to explain why they thought that the Supreme Court had not only gotten the constitutional law wrong, but had also acted illegitimately in making its rulings. (3) These kinds of critiques culminated in the Reagan administration, the creation of the Federalist Society, and the mobilization of a conservative legal movement that embraced originalism as a core commitment. (4) As a result, many conservatives embrace originalist arguments, and the public often associates originalism with conservatives.
The more troubling issue is not whether the public associates originalism with conservatives or conservative politics, but whether originalism is a rationalization for conservatism. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically compelling independent of its connection to conservative politics, or is originalism simply a means to the end of achieving a set of constitutional doctrines that conservative politicians and interest groups prefer? Might originalism be justifiable independent of any reference or commitment to conservative constitutional law outcomes? Might it appeal to political liberals? Or must one already have committed to conservative politics to find any value in constitutional originalism?
This Essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are generally more likely than liberals to find originalism a normatively attractive approach to constitutional interpretation. This Essay considers the ways in which originalism both intersects with and diverges from conservatism. In doing so, it will consider originalism from two different perspectives that raise somewhat different issues. Part I will focus on originalism as a method of constitutional interpretation. Part II will focus on originalism as a political theory of judicial review and constitutional authority.
Before pursuing this inquiry, there are some issues worth mentioning but beyond the scope of this Essay. First, this Essay will not delve into the question of what originalism is. It will treat originalism with a broad brush, and not make fine distinctions among different schools of originalist thought. For present purposes of this Essay, the aim is to be catholic in this discussion of originalism, and any more particular points about originalism should be clear in context. (5) Second, this Essay will bracket the question of whether individual judges or particular political actors are, in fact, principled or consistent adherents to originalism. (6) It is an interesting empirical question whether a judge adheres to any principled theories of either constitutional interpretation or the judicial role, let alone whether a judge adheres to originalism in particular. (7) Scholars have long investigated, and struggled to answer, that empirical question. (8) Ultimately, however, the results of such an investigation would not help answer the question addressed herein. There is little doubt that originalism can be used to rationalize and legitimate conservative results; many other forms of constitutional argument and theorizing can also do so. But asserting such a general contention about the theory on the basis of some examples of flawed practice is no more compelling than arguing that "doctrinalism is a rationalization for conservatism" on the basis of examples of bad doctrinal arguments made in the service of reaching conservative results. …