Has “Originalism” Lost Its Way?

We all know the basic story. In the 1960s and 70s, the Supreme Court rendered decisions and announced doctrines that seemed to have only the remotest connection, if any, to the actual Constitution that the enactors had thought they were adopting. Roe v. Wade was perhaps the most egregious example. These decisions and doctrines seemed in severe tension with American commitments to democratic decision-making and rule of law. In the academy, one response to this perceived tension was a massive project, still on-going, to rationalize the Court’s doings. A different response was the emergence of a movement usually called “originalism.” This movement aspired to rein in a roaming judiciary and to drag constitutional law back to the understandings that had actually informed the enactment of the Constitution and later amendments.

In the 1980s and 1990s, the originalist movement gained momentum, and sophistication, and this development continued in the new century. Today originalism claims the consistent support of at least two Justices, and the interest and support of numerous scholars. It generates large quantities of scholarship, both historical and theoretical, much of it of high quality. Every year the Center for the Study of Constitutional Originalism, administered by my colleagues Mike Rappaport and Mike Ramsey, sponsors a superb conference at the University of San Diego, which attracts major scholars from the most prestigious universities.

The progress of originalism is impressive–and all to the good, I think. And yet I sometimes wonder: somewhere along the way did originalism . . . well, lose sight of its central purpose– of its “original intention,” so to speak. (I have elaborated on some of my reservations here.) The fact that high-profile “progressive” scholars like Michael Perry back in the 1980s and more recently Jack Balkin can convert to originalism without in any way altering their capacious conception of the Court’s role might be a sign that, somewhere along the line, originalism may have gotten off the track.

Of course, more conservative originalists may question whether Perry and Balkin truly deserve to be included in the fellowship at all. But my sense is that Perry and Balkin are in good faith; they don’t seem to be acting as subversive infiltrators or impostors. More importantly, what Perry, Balkin, and other more progressive originalists do seems authorized by originalist orthodoxy. After all, they are merely working from a distinction that even most conservative originalists (not all) insist on– namely, the (ostensible) distinction between “meaning” and “expected applications.” Once you say that the “meaning” of a constitutional provision can deviate from what the enactors expected the provision to do, and can instead incorporate some “principle” or “norm” whose scope and implications the enactors only imperfectly comprehended, there is nothing– nothing in originalism, anyway– to preclude the Perrys and Balkins of the profession from arguing for expansive interpretations that would leave the enactors shuddering in their graves.

All of this makes me wonder whether it was a mistake to say that constitutional interpretation should seek to discern and conform to “original meaning” (whether conceived in intentionalist or “public meaning” terms). Upon reflection, and with benefit of hindsight, I suspect that although “original meaning” comes very close, it is not– or should not be– the guiding criterion. Not exactly. Not as the concept has come to be understood anyway.

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean. (Am I exaggerating? Maybe, a little. But then again, would the people who enacted the Fourteenth and Fifth Amendments have thought so if they had been vouchsafed a vision of Roe v. Wade . . . or United States v. Windsor?)

Nor is that distressing conclusion altered if a theorist comes forward and proclaims, “Ah, but I have a fancy little hermeneutical theory that shows how this consequence, however shocking to or unanticipated by the enactors, can be deemed an ‘interpretation’ of the ‘original meaning’.” Not even if the theory is sophisticated and persuasive. The goal, once again, was and should be to let “We the People” govern ourselves, deliberately and rationally. If “original meaning” (as scholars have come to understand it) frustrates that goal, then so much the worse for “original meaning.”

And so I wonder: might it be good if some new movement were to emerge, some movement devoted to the true criterion for constitutional interpretation? Unfortunately, although I’ve tried to describe that criterion here in rough terms, I don’t even have a neat label for it. (A few years ago, in a draft that was eventually and deservedly abandoned, I tried to talk about the necessity of a “maker-meaning nexus.” I won’t hold my breath waiting for that one to catch on!) But I warmly invite someone more clever and more energetic than I am to coin the appropriate terms and initiate the movement. And may the movement prosper as well as “originalism” has done!

Steven D. Smith

Steven D. Smith is the Warren Distinguished Professor of Law, University of San Diego and Co-Executive Director of the USD Institute for Law and Religion.

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Comments

  1. gabe says

    Ahh! The joys of swimming upstream – such vigorous effort may delude us into thinking that we are accomplishing something – but we are actually coming perilously close to the falls.

    In any event what difference would it make – even if we were to have appended a list of particular expectations to any of our Amendments, the Black Robes would do as they see fit.
    After all, the Civil rights Act(s) of the 60’s specifically denied that “preference” would be allowed – That worked out rather well, didn’t it?

  2. Kevin R. Hardwick says

    It seems to me that as a doctrine, originalism privileges one leg of constitutionalism, consent, at the expense of another, limitation of government. Surely we must care about both.

    Any constitution that strives to limit power must begin with a realistic understanding of how power actually is manifest and articulated in the real world. Political theorists have a name for this–“regime.” For a constitution to be effective, it must fit the regime it strives to circumscribe.

    So why should I care a whit one way or the other for the intent of constitutional founders now long dead, if the regime in which I live now is not the regime they sought to limit? If the limitations emplaced by an old constitution no longer function, why does the intent of their framers matter, as a practical matter, in the present?

    Why does consent of past generations matter, if their regime is not mine? This strikes me as a fundamental problem with originalism as it has been presented on this board. What am I missing?

  3. Kevin R. Hardwick says

    Indeed–isn’t originalism actually misguided, and indeed imprudent, if by adhering to it we seek to elevate constitutional provisions that no longer adequately limit power as it actually exists in the modern, statist and bureaucratic world, and if it hinders efforts to adapt constitutionalism to check what right now is at best imperfectly limited?

  4. Kevin R. Hardwick says

    A final thought, since clarity is hard enough to come by even under ideal circumstances. I do not wish to suggest that originalism is imprudent. I do wish to suggest though that any originalism worth its salt must take the questions I pose here seriously, and can not simply assume them away.

    I take it to be axiomatic that our regime has in fact changed since the framing; that power today is not well checked by either constitution or law, and that as consequence our government today operates at some appreciable risk of being imperfectly constitutional; and that given lack of consensus about the telos of government or the magnitude of threat to liberty today (or even of what liberty consists), any satisfactory revision of our constitution is unlikely. If all of these are true, what hope can originalism offer us that promises more good than harm?

    • gabe says

      Kevin:
      You are correct that our regime has changed since the founding, and that the regime, being something more than a governing structure but rather somewhat more in that it encompasses a collective vision, telos (often debated yet never settled) and numerous other economic / emotional / intellectual factors, would indeed be difficult to change (back?).
      Yet, one may yet hold out some hope that prudent change may be possible.
      I am not certain that I agree with your assertion that originalism privileges consent over limited government. Much of what I have read would indicate that there is as much respect for limited government in the writings of originalists as there is for consent and / or liberties for that matter.
      If your assertion is correct both as an observation of current thought and as a propositional matter for originalists, then all may be lost.
      If, however, originalists, of whatever stripe, indeed recognize, and seek to advance the concept of limited government then we may not be quite so close to dropping over the falls as some would suppose.
      If limited government is advanced via originalist jurisprudence AND Legislative action, along with an ongoing reform of our educational posturings / teachings, it is conceivable that over the course of a few generations we may reverse the current trend.
      It will not be easy and it would require some political courage on the part of our Legislatures (doubtful, yes) AND the electorate (perhaps, more doubtful as we continue to add to the rolls of benefit seekers with current policies) – but not impossible!
      As an example, much fine scholarship is being produced by the likes of Phillip Hamburger (Is Admin Law Lawful) and Buckley (The Once and Future King) on the perils of governmental prerogative as manifested by the Administrative State. Were a bright and clever fellow to produce such thematic writings in a fashion that the electorate would be willing to accept, we could see some progress. surely, there are innumerable instances of the effects of Administrative State, if only a certain political party would openly criticize / publicize these instances, then perhaps, we could see a significant change in attitude toward the current regime.

      Thus, it is not that originalism can not offer us any hope; rather originalism, in and of itself may offer no more than a guide, for the “virtuous” statesman to foster / implement change.

      take care
      gabe

  5. Nancy says

    No doubt, originalism has lost it’s way, in fact, one can argue from The Beginning; since it is true that from the moment of conception, our Life has been a continuum, thus Time travel not being possible, it is also true that no one at The Convention would have even dreamed that there would one day be a man named Darwin, who would make an outrageously false assumption, that it would be possible for a son or daughter of a human person to be, anything but a human person.

  6. Nancy says

    Or, I would add, for a human person to be, in being, from The Beginning, something other than a son or daughter.

  7. gabe says

    Kevin may be correct here at least according to some foreign observers.
    From yesterdays news:

    “our current rulers view the Constitution merely as an inconvenience. Which led one Ukrainian journalist to suggest that his country adopt it:
    “Why don’t we use the American Constitution? It was written by really smart guys, it has worked for over 200 years, and they’re not USING it anymore.”

  8. Ron Johnson says

    A return to the original agreement became impossible once Progressives took our system far afield from anything like the original structure. The main villain is the administrative state, which despite the many good things its does has always been completely contrary to the divided government originally intended by the founding generation. No theoretical judicial approach can save us from ourselves; only the people have the power to repair the damage, and only if they choose to do so.

  9. says

    Steven, you “…wonder: somewhere along the way did originalism . . . well, lose sight of its central purpose– of its “original intention,” so to speak.” I had the same misgivings with your colleague, Mike Rappaport. Mike also “converted to originalism without in any way altering (the) capacious conception of the Court’s role… Somewhere along the line, (Mike’s) originalism (had) gotten off the track… Once you say that the “meaning” of a constitutional provision can deviate from what the enactors expected the provision to do, and can instead — INCORPORATE (emphasis added) some “principle” or “norm” — there is nothing –– to preclude (Mike) … from arguing for expansive interpretations that would leave the enactors shuddering in their graves.” The following is from conversations Mike and I had: Mike Rappaport, Mar 28, 2014 @ 16:31:33, John: Without getting into details, there is a strong case for finding incorporation under the Privileges or Immunities Clause. I am therefore generally supportive of it). That is a question of original meaning.” And, Mike Rappaport, Mar 30, 2014 @ 15:13:06, John, When I say that I am generally supportive of incorporation as stating the original meaning, that INCLUDES (emphasis added) the Free Exercise Clause. The tougher argument is the Establishment Clause — I don’t have much of a position on this one. It depends on a variety of matters that are too complicated to get into here. It is true that the First Amendment applies to Congress. But the Privileges or Immunities Clause protects against states the rights of citizens. So if free exercise would have been deemed a right of citizens, it would be protected by the 14th Amendment, even though the 1st Amendment only applies to Congress.” Also, on May 30, 2014, Mike stated, “… originalists – historically especially – have argued that the original meaning should be followed, not because it will improve the law, but because it is the law, and added, “This argument, however, does not work.”
    Mike is the same “originalist” in your first sentence above, unfortunately. I, personally, wish he was not. We need as much support for our Constitution as we can get – from all avenues. Minimizing the Constitution, by progressive federal judicial judges revision of the Constitution – just don’t cut it; and it shouldn’t w/Mike.
    Jul 8, 2014, Mike states, “First, nonoriginalist judges are probably not unwilling to say that they follow precedent despite a contrary original meaning… (More generally, nonoriginalist judges could often claim that the original meaning is not clear by adopting a strict standard for establishing the original meaning.) He also claimed that practice was important in determining the meaning of the Constitution.”
    The two most important words, in these two sentences are ‘precedent” and “a strict standard”. The First Amendment’s “free exercise thereof (religion” –is a “precedent” and “a strict standard” of the Constitution – whether you are an “originalist’ or “non-originalist”. That is Constitutionalism!
    Respectfully, John
    (Facebook, author of The Tribute)

  10. says

    Edward Whelan, @ http://www.eppc.org, notes today,
    The Rise and Decline of American Religious Freedom
    By Steven D. Smith, Harvard, 240 pages

    Anyone who wants to understand the perilous condition of religious freedom in America should read this book. In lucid prose, University of San Diego law professor Steven D. Smith contests basic themes of the conventional story of American religious freedom and presents a provocative and compelling counter-narrative. His account culminates in a bracing discussion of the threat posed by the emergent new orthodoxy of secular egalitarianism… (The founders) made clear that matters of religion remained within the domain of the states… When the Supreme Court shattered this settlement by adopting the secularist interpretation, it engendered a destructive “discourse of accusation, anathematization, and abuse,” a discourse that has spread to judicial interventions on related issues like abortion and marriage … secular egalitarianism, especially as reshaped and bolstered by the gay rights movement, is fundamentally incompatible with a robust understanding of religious freedom. Indeed, it has all the markings of an oppressive orthodoxy.
    Respectfully, John
    (Facebook, author of The Tribute)

  11. says

    “… original meaning … we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean …” It’s not “anybody’s guess” I should think. It is probably easily “guessable” by those who would study the tenets and previous scholarly or judicial opinions of the judges a president appoints. The question may in the last analysis boil down to ask: how can you, the people, get a process in place whereby the president elect is a true “originalist”? It does not seem the case for a long succession of presidents as far as I can see.

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