Pre-"Originalism"

By Toler, Lorianne Updike; Cecere, J. Carl et al. | Harvard Journal of Law & Public Policy, Winter 2013 | Go to article overview

Pre-"Originalism"


Toler, Lorianne Updike, Cecere, J. Carl, Willett, Don, Harvard Journal of Law & Public Policy


CONCLUSION

Those who maintain that the Supreme Court historically was an Originalist Court prior to the Warren and Burger Courts have either looked at data sets that paint a very different picture than that we have compiled, or, more likely, have relied upon anecdotal information and taken the Justices' statements at face value. Based on our quantitative and qualitative analyses of cases of constitutional first impression, we believe this conclusion to be wrong. With further research showing that the Justices deliberately applied a common law interpretive method patterned, for example, on the interpretive method of Justice Marshall because they believed him to be a good model of applying Founding legal rules and practices, it could be possible to say the Court practiced something akin to Original Methods Originalism during its first century. Regardless, it is not possible to say that the Court engaged in substantive Originalism until the Warren and Burger Courts. Throughout its entire history, the Court has made consistent and repeated facial commitments to interpret according to the intention of the Framers, yet it was not until the Warren and Burger Courts that the Court began to honor its commitment by citing consistently to the Framers and their documents.

For the first hundred years of its existence and in fifty-six cases of constitutional first impression, the Court relied upon a thin layer of much earlier sources from Antiquity, the Enlightenment, and early colonial and Founding period sources that long preceded the creation of the Constitution. It also increasingly relied upon early Court precedents by analogy, particularly cases from the Marshall Court. The explanation for this phenomenon of claimed reliance upon Framing intent yet true reliance upon much earlier sources may be attributed to a common law or Whiggish interpretation of history, wherein history represents conscious, continual, and forward progress that the Framers would have been assumed to know, and have enshrined in their thinking.

During the second hundred years of the Court's history and the last forty pre-Heller cases of constitutional first impression, the Court continued its shallow commitment to Intentionalistlike rhetoric. Although the number of cited Framing sources increased, so too did the proportional weight of the sources derived from secondary sources and, increasingly, previous cases interpreting other areas of the Constitution. Until Heller in 2008, an anomaly for its prodigious historical rigor, the numerical use of sources climaxed during the Warren and Burger Courts.

Although our study has focused only on cases of constitutional first impression, because it constitutes on unbiased, inclusive, and representative sample of the Court's constitutional interpretive methodology over the course of its history, we maintain that our findings may be generalized. The same study repeated by different individuals, or a larger study incorporating a larger universe of cases would yield the same result. Based on the Court's own statements prior to Heller, it seems that the Court saw itself as an Intentionalist Court. Yet it was not. As we have described it here, it would be more accurate to christen it as a "Historicalistic" Court.

Appendix 1: Antiquity

Antiquity             JJ   JR   OE   JM   RT   SC   MW   MF   EW1

Atlas                 1
Cicero                1
Demosthenes           1
Homer                 1
Iliad                 1
Isocrates             1
Justinian                            1
Roman Law                                           1
The Ephri of Sparta   1
Troy                  1
Unspecified                                              1
Subtotal              8    0    0    1    0    0    1    1     0

Antiquity             WT   CH   FV   EW2   WB   WR   Tot.

Atlas                                                 1
Cicero                                                1
Demosthenes                                           1
Homer                                                 1
Iliad                                                 1
Isocrates                                             1
Justinian                                             1
Roman Law                                             1
The Ephri of Sparta                                   1
Troy                                                  1
Unspecified                1    1                     3
Subtotal              0    1    1     0    0    0     13

Appendix 2: English Precedent

English Precedent              JJ   JR   OE   JM   RT   SC   MW   MF

Common and Chancery Law        1    3    4    3    1    3    6
Acts of Parliament                  5    1    1    1
Magna Carta                              1    3    1    1    2
Administrative Practice                                 2    1
Constitutional Law             1              1    1    1    1
English History                                              1
English Declaration of Right
Anglo-Saxon Law                1
Royal Decrees                  1
Unspecified                    1    1    4    2         2    2
Subtotal                       5    9    10   10   4    9    13   0

English Precedent              EW1   WT   CH   FV   EW2   WB   WR

Common and Chancery Law              1    1    1     1
Acts of Parliament                                   1
Magna Carta
Administrative Practice                        1     1
Constitutional Law
English History                      1               2
English Declaration of Right                   1     1
Anglo-Saxon Law
Royal Decrees
Unspecified                               1    1
Subtotal                        0    2    2    4     6    0    0

English Precedent              Tot. … 

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Pre-"Originalism"
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.