The New Originalist Manifesto
Fleming, James E., Constitutional Commentary
CONSTITUTIONAL ORIGINALISM: A DEBATE. Lawrence B. Solum (1) and Robert W. Bennett, (2) Ithaca: Cornell University Press. 2011. Pp. ix + 210. $29.95 (Cloth).
Lawrence B. Solum and Robert W. Bennett's excellent book, Constitutional Originalism: A Debate, calls to mind a famous book in political philosophy, J.J.C. Smart and Bernard Williams's Utilitarianism: For and Against. (4) Both works pair two spirited yet fair-minded scholars in a constructive debate between two competing views prevalent in their fields. Originalism has a reasonable, programmatic, and inclusive proponent in Solum, and living constitutionalism has a capable, pragmatic, and effective champion in Bennett.
In this essay, I shall not judge the debate between Solum and Bennett. Instead, I shall focus on Solum's contribution, interpreting it as a new originalist manifesto. I shall extend the debate, carrying on what I believe is an equally important debate between originalism and what Ronald Dworkin called a "moral reading" of the Constitution and what I call a "Constitution-perfecting theory." (5) Some readers may think that Dworkin's and my approaches are versions of living constitutionalism, but they are importantly different from it. I shall suggest that the prospects for reconciliation between Solum's new originalism and moral readings are greater than those between his new originalism and living constitutionalism. The basic reason is that the new originalists and moral readers share a commitment to constitutional fidelity: to interpretation and construction that best fits and justifies the Constitution. Living constitutionalists characteristically are more pragmatic, instrumentalist, and forward-looking in their approaches to the Constitution and, as such, tend to be anti-fidelity. This essay will further my book in progress, Fidelity to Our Imperfect Constitution, which defends a moral reading or Constitution-perfecting theory as a conception of constitutional fidelity that is superior to originalism, however conceived. (6)
At the outset, I should say that Solum is the ideal scholar for the project of writing a new originalist manifesto. He fairly concedes many of the flaws in the old originalism, with an openness to criticism and a generosity of spirit that are not always present in originalists. He candidly grants that originalism has evolved--that it is a family of theories rather than one coherent, unified view--and that the new originalism is a work in progress (pp. 2, 7-11). He formulates the new originalism inclusively, seeking and articulating common ground among competing theories in a constructive spirit. Solum is somewhat unusual in not coming to his originalism for political reasons. Many conservatives appear to embrace originalism because they believe that it will support conservative outcomes. And many liberals evidently adopt and adapt originalism because they believe that it is their best hope to persuade conservative judges: if you can't beat them, join them. Solum has neither motivation. He seems to come to his new originalism out of philosophic and jurisprudential commitments--not to wage a counter-revolution against the liberal Warren Court, but to correct the philosophical and jurisprudential excesses and errors of Legal Realism and Critical Legal Studies. As a matter of principle, he wants to get the theory of interpretation and construction right. For these reasons, his project has an admirable and demonstrable integrity.
In Part I, I evaluate the claim implicit in the title of Solum's opening chapter, "We Are All Originalists Now." In Part II, I explicate Solum's formulation of the new originalism by contrasting it with Keith Whittington's. In Part III, I explore Solum's development of the distinction between interpretation and construction. In Part IV, I show the misconceived quest for the original public meaning. In Part V, I take up the possibility of reconciliation between the new originalism and living constitutionalism, suggesting that such prospects are better for the new originalism and moral readings. …