• 07 December 2009

Living Originalism

Thomas B. Colby & Peter J. Smith

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For the last several decades, the primary divide in American constitutional theory has been between those theorists who label themselves as originalists and those who do not. It is widely understood that the side that does not embrace originalism is populated by proponents of a vast array of disparate constitutional theories. To many proponents of originalism, the staggering diversity of these alternative approaches is evidence of their collective inferiority. Nonoriginalists, Justice Scalia explains, can reach “agreement on nothing except what is the wrong approach.” It takes a theory to beat a theory, he argues, but “it is hard to discern any emerging consensus among the nonoriginalists as to what this might be.” The “glaring defect of Living Constitutionalism,” he contends, “is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution” of constitutional meaning.

This assertion trades implicitly on the notion that originalism represents a single, coherent constitutional theory, against which are arrayed the disparate nonoriginalist alternatives. Originalist rhetoric paints a powerful picture of originalism as a consistent, coherent theory that has stood the test of time while countless other convoluted theories have come and gone, all so plainly flawed that they are unable to attract adherents. To hear many originalists tell it, the fact that, after decades of desperately trying, all of the smart and talented nonoriginalists have failed to come up with “the” alternative to originalism suggests that no such theory is possible. Originalism, they insist, is the only coherent method of constitutional interpretation.

It is not only the rhetorical attraction of originalism, but also its normative force, that to a substantial degree turns on there being one, consistent originalist approach. To its proponents, originalism is not simply the only coherent approach, but also the only legitimate approach. Originalists often assert that the propriety of originalism follows naturally from the very fact that the Constitution is a form of law; originalism, they say, is “almost self-evidently correct” and “so obvious that it should hardly need a name, let alone a defense.” Responding directly to the long-standing problem of the countermajoritarian difficulty—that is, the concern that judicial review allows unelected, unaccountable judges to thwart the will of democratically elected legislatures—originalists further contend that the determinacy provided by reliance on constitutional text, or at least on some objective guidepost for the fixed meaning of the constitutional text, is essential to constraining judges’ ability to impose their own views under the guise of constitutional interpretation.

As a result, originalists insist, originalism is not merely a legitimate method of constitutional interpretation, but rather is the only legitimate interpretive approach, and the only alternative to judicial activism. Prominent originalists have, for some time now, smugly declared that “there is a single, ‘true’ method of constitutional interpretation,” and that “[o]ther approaches to interpretation are simply wrong.”

Critics of originalism have sought to undermine these assertions by questioning the legitimacy of originalism or by seeking to articulate alternative interpretive theories that can lay claim to coherence and legitimacy. But they have for the most part accepted uncritically the characterization of originalism as a coherent, monolithic theory that stands in marked contrast to the mishmash of divergent theories on the nonoriginalist side of the divide.

But this characterization is unfounded. In fact, there is profound internal disagreement among originalists. Originalism is not a single, coherent, unified theory of constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label. The image of a monolithic theory standing tall and firm, deflecting countless hapless attempts to knock it down, is wrong. The more accurate picture is one of a collection of rapidly evolving theories, constantly reshaping themselves in profound ways in response to devastating critiques, and not infrequently splintering further into multiple, mutually exclusive iterations.

In a relatively short period of time, originalism has evolved dramatically—indeed, so dramatically that the brand of originalism advanced by some of its most prominent defenders today would be virtually unrecognizable to those in originalism’s vanguard in the 1970s and 1980s. More important, contrary to the suggestion of its proponents—for whom there is only originalism and everything else—there are today countless variations of originalism, and the differences among them are sometimes so stark that it is difficult to treat them as one coherent interpretive methodology. The original “jurisprudence of original intention” slowly gave way to one of original meaning, determined by reference to the understanding—held by either the drafters, those who voted in state ratification conventions, or the general public, depending upon whom you asked—of the relevant provision at the time of its adoption. And from there, originalist theory gradually shifted again, to a jurisprudence of objective textual meaning. Today, pressing that theory to its logical extreme, several of the most prominent academic proponents of originalism dismiss not only the original intention of the Framers, but also the actual original understanding of the Framing generation. Instead, they seek to determine how the words of the Constitution “would have been understood by a hypothetical, objective, reasonably well-informed reader of those words and phrases, in context, at the time they were adopted, and within the political and linguistic community in which they were adopted.” In the meantime, other prominent originalists who also claim to rely on original textual meaning have recast the theory in very different terms, as one that boldly empowers the judiciary to protect libertarian or even progressive visions of constitutional liberty. In addition, some originalists insist that stare decisis is fully compatible with originalism; other originalists argue not only that it is not, but also that those who believe that stare decisis is compatible are not really originalists at all. These various current forms of originalism have almost nothing in common with each other, or with the original originalism, except their self-conscious adoption of the same label. Infighting among originalists has reached a fevered pitch, and it is not limited to disagreements about how the theory is properly applied to particular legal questions; rather, it concerns the very nature of the theory itself.

As it turns out, originalists, who have long criticized the notion of a living constitution, have themselves followed a living, evolving approach to constitutional interpretation. Ironically, originalists’ understanding of the relationship among originalism’s current meaning, its original meaning, and its underlying principles is similar to living constitutionalists’ understanding of the relationship among the Constitution’s current meaning, its original meaning, and its underlying principles.

It is not our objective here to criticize originalists for continually refining their approach. Indeed, any rigorous theory must be capable of adaptation in the quest for perfection. But because the rhetorical and normative defenses of originalism—in whatever variation—turn so substantially on the claims that originalism is the only theoretically coherent and legitimate approach to constitutional interpretation, it is notable that it has become virtually impossible today to define what exactly originalism entails. Justice Scalia is perhaps correct when he argues that “it is not very helpful to tell a judge to be a ‘nonoriginalist.’” But the proliferation of competing models of originalism suggests that it is also increasingly unhelpful to tell a judge to be an originalist. The very notion of originalism itself has become indeterminate.

This state of affairs has consequences for originalism’s normative defense. Originalists regularly contend: (1) that their methodology is the only theoretically coherent approach to constitutional interpretation; (2) that, because their approach accords to the Constitution a fixed and determinate meaning based on the document’s text, it is the only legitimate approach to constitutional interpretation; and (3) that their approach is uniquely promising for constraining the ability of judges to impose their own views under the guise of constitutional interpretation. But the diversity in and evolution of originalist thought undermine these three claims. If even originalists cannot agree about what originalism is and what it entails, then how can originalism be uniquely coherent and self-evidently correct? And because different versions of originalism focus on different historical criteria—and, as a result, frequently produce different constitutional meanings—how can originalists maintain that originalism is uniquely determinate, and thus uniquely consistent with law and democracy? Finally, when one recognizes that the diversity of originalist theories allows originalist judges to pick and choose among the various strands of originalism from case to case to reach results that accord with their personal policy preferences, one is left to question the assertion that originalism is uniquely resistant to judicial activism.

In fact, originalists can and often do move from one version of originalism to another as they decide different issues, thus allowing them to reach results that they personally prefer, all the while claiming (and likely mistakenly believing) that they are being guided by nothing more than the external constraint of history. Justice Scalia, for example, has strongly defended the primacy of the constitutional text in interpretation, but he has nevertheless endorsed the Court’s state sovereign immunity decisions on the ground that an unwritten “assumption” of immunity was “implicit in the Eleventh Amendment.” And although in his academic writing he has claimed to reject the original-expected-application approach to originalism—according to which the Constitution must be interpreted to reflect the actual expectations of the Framing generation as to how it would apply to particular practices—Justice Scalia has in practice embraced it. For example, he has argued that capital punishment cannot violate the Eighth Amendment’s prohibition on cruel and unusual punishment because its wide use at the time of the Framing indicates that the Framers did not expect or understand the Eighth Amendment to prohibit it, and he has used the same approach to conclude that certain government-sanctioned displays of religion do not violate the Establishment Clause.

We imagine that many committed originalists would respond by asserting, as has Justice Scalia, that originalism’s normative claims still carry force because, although there are some differences among originalists about their methodology, originalism “by and large represents a coherent approach, or at least an agreed-upon point of departure.” But this grossly understates the level of disagreement among originalists. Originalism does not “by and large” represent a coherent approach. And because the shared principles that can be said to animate all of its various iterations are remarkably broad, it is an “agreed-upon point of departure” only in the way that Chicago’s O’Hare Airport is a point of departure: because there are so many flights on so many airlines to so many different places, you can use it to get virtually anywhere you want to go.

Originalists thus find themselves in something of a bind. They can assert that more than one, or perhaps even all, originalist theories are legitimate. But that assertion undercuts the core normative claims of many originalists that originalism is uniquely consistent with law and democracy and is uniquely capable of constraining judges. One cannot take the position that multiple iterations of originalism are legitimate while simultaneously touting originalism’s unique fidelity to law, democracy, and judicial constraint.

Alternatively, originalists can assert that only one particular brand of originalism—such as original-intent originalism or original, objective-public-meaning textualism or text and principles originalism—is legitimate. But that assertion undercuts both the facile “it-takes-a-theory-to-beat-a-theory” argument—by making clear that originalists cannot agree amongst themselves on constitutional interpretation, either—and the notion that originalism is obviously and self-evidently correct. Finally, one might contend that all (or at least most) iterations of originalism are legitimate, but that true legitimacy requires a judge to choose one version and follow it faithfully. But picking and sticking to one particular originalist methodology appears to be much harder in practice than it is in theory; self-described originalist judges have not done particularly well on this score.

Perhaps our account will aid originalists by informing or reminding them that originalism is a broad tent and that, to gain the professed benefits of an originalist approach, they need to be substantially more disciplined and consistent in distinguishing among originalist theories. But one wonders whether the temptation to drift subconsciously among originalisms to reach desired results will in fact prove to be insurmountable. Perhaps the true lure of originalism lies in its ability to allow a judge to claim the interpretive high ground by purporting to be bound by objective historical meaning, while at the same time giving the judge the wiggle room to reach, whether consciously or not, the results that she desires and demands. If that is so, then much of the originalists’ case for their theory collapses.

Originalism, it turns out, is a loose collection of a staggering array of often inconsistent approaches to constitutional interpretation. And the approaches themselves continue to change and evolve, sometimes too fast for anyone to keep up. Originalists might despise the notion of a living constitution, but they have gone a long way toward creating a living constitutionalism of their own—the very existence of which undermines much of their own rhetorical and normative claims to superiority.dingbat

 

Acknowledgments:

Copyright © Duke Law Journal.

Thomas B. Colby is Associate Professor of Law at George Washington University Law School.
Peter J. Smith is Professor of Law at George Washington University Law School.

This Legal Workshop Editorial is based on the following Article: Thomas Colby & Peter Smith, Living Originalism, 59 DUKE L.J. 239 (2008).


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