Originalism's Expiration Date
New York University School of Law; University of Chicago - Law School
November 13, 2008
U of Chicago, Public Law Working Paper No. 247
The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, I calculate the average lag between ratification and Supreme Court interpretation to be approximately 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication when constitutional text is still fresh, but should then fade with time. On this view, the historical arguments in cases such as District of Columbia v. Heller might be irrelevant.
This Article is a reassessment of time's influence on constitutional adjudication. It begins by investigating the character and suggesting the causes of time lags in the interpretation of supreme law. It also identifies the Supreme Court's initial encounters with Article V amendments and charts some interpretive trends over time. The Article then turns to the normative arguments for an expiring originalism. First, it resists the claim that strong judicial originalism is always desirable in the wake of ratification. Second, it pushes back in the other direction and explores justifications for a timeless originalism. An example is the possibility that judicial originalism generates ex ante incentives for Article V effort. Although unacceptable to some on principle, for others this justification will be persuasive on certain empirical assumptions. Finally, an unorthodox analogy is explored. Within a limited domain, a version of originalism can function as a culturally acceptable substitute for randomization. It turns out that a corner of supreme law is likely best determined at random, even if judges will never actually roll dice.
Number of Pages in PDF File: 82
Keywords: originalism, constitutional amendment, interpretation, adjudication, randomizationworking papers series
Date posted: November 21, 2008
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