A Century Lost: The End of the Originalism Debate

By Segall, Eric J. | Constitutional Commentary, Winter 1998 | Go to article overview

A Century Lost: The End of the Originalism Debate


Segall, Eric J., Constitutional Commentary


   "I happen to like originalist arguments when the weight of the evidence
   seems to support the constitutional outcomes I favor...."(1)

INTRODUCTION

Almost one hundred years ago, Professor Arthur W. Machen published an article
in the Harvard Law Review called The Elasticity of the Constitution.(2) In
this two-part article, which until now has been buried in history,(3)
Professor Machen explored the relationship between a fixed Constitution and an
ever-changing society and advanced three propositions about originalism and
constitutional interpretation. First, judges must attempt to ascertain the
original meaning of the Constitution whenever they exercise judicial
review.(4) Second, a political practice determined by judges to be
constitutional may later be invalidated by judges, and vice-versa, because the
facts to which the original principles are applied are constantly changing.(5)
Third, the Framers might originally have believed that the meaning of vague
constitutional provisions, like the Eighth Amendment's ban on "cruel and
unusual punishments," would not be fixed as of the date of enactment, but
should be fleshed out by judges over time according to the values of
succeeding generations.(6)

Professor Machen's article demonstrates that he was what modern scholars refer
to as a "sophisticated" originalist.(7) He believed the examination of
original meaning is not the search for what the Framers specifically had in
mind when they drafted the text, but rather for the general and reasonable
meaning of the language they used.(8) Moreover, Professor Machen knew there
would be many constitutional questions originalism cannot answer.(9) In such
cases, judges must turn to other "rules of construction" and "positive law,"
which inevitably provide them significant discretion to determine the proper
results in difficult cases.(10)

This essay argues that the academic debate over the legitimacy of originalist
and non-originalist constitutional interpretation has not progressed
materially since Professor Machen's article.(11) Furthermore, a review of his
work teaches us that originalism does not lead inevitably to active or passive
judicial review; that questions about originalism as an interpretive tool are
largely irrelevant to how judges decide real cases; and that there is little
reason for scholars to continue to argue about the proper role of original
meaning in constitutional interpretation.(12) That role should be as clear to
us as it was to Professor Machen--judges refer to the original meaning of the
Constitution to provide an important link to our past culture and traditions,
but the original meaning rarely dictates results in real cases because the
context within which that meaning is applied is constantly changing.

The first part of this Essay supports these points by comparing Professor
Machen's article to a recent argument among two of our most prominent legal
thinkers, Justice Antonin Scalia and Professor Ronald Dworkin.(13) This
comparison demonstrates that the debate over originalism has not moved forward
in almost one hundred years. The second part of this essay discusses the
academic debate over originalism and desegregation. This debate, perhaps more
than any other, illustrates the futility of scholarly attempts to criticize or
justify important Supreme Court decisions on an originalist basis, and
supports my thesis that there is little reason for scholars to continue to
argue about the appropriate role of original meaning in constitutional
interpretation.

I. THE ORIGINALISM DEBATE

A. ARTHUR W. MACHEN

In 1900, there were only three university-affiliated law reviews--the Harvard
Law Review, the Yale Law Journal, and the American Law Review, which was the
predecessor to the University of Pennsylvania Law Review. As of that year,
there had been only a handful of articles ever written on the subject of
constitutional theory.(14) Nevertheless, Professor Machen's article
exhaustively explored the originalism question. … 

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

A Century Lost: The End of the Originalism Debate
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.