47 Pages Posted: 27 Aug 2007
Date Written: August 2007
This article is a critique of the new originalism. New originalists such as Keith Whittington and Randy Barnett assert that the turn to emphasizing the public meaning of the Constitution, along with other improvements, has enabled originalism to answer the most serious objections leveled against it. This claim is questionable. I argue that these changes are more akin to an attempt to reboot the old originalism. On the positive side, I provide a theory that, unlike originalism, is capable of explaining and justifying the persistence in the federal courts of alternative legitimate forms of constitutional interpretation and the reality and legitimacy of informal constitutional change outside Article V.
Originalism insists that only certain sorts of historical evidence, such as the understandings of constitutional meaning of the Philadelphia framers or ratifiers of the Constitution, are legitimate in constitutional interpretation. But in the long-running debates over originalism, its status has been left unclear. When the case for originalism is pressed, are its advocates claiming its legitimacy as one form of interpretation among others, or that it is the only legitimate method of interpretation? My critique is directed solely against the latter view, which I call exclusive originalism. Exclusive originalism has real bite as a constitutional theory. It asserts that other methods of interpretation are wrong or illegitimate and thus that some long-standing constitutional doctrines are wrong or illegitimate. Exclusive originalists claim that the Supreme Court should use public meaning originalism as the sole way of interpreting the Constitution. I argue that exclusive originalism should be rejected, presenting two substantial arguments that have been relatively neglected in recent scholarly debates.
I develop my critique in four parts. In the first, I describe the new originalism, focusing especially on recent comprehensive works by Whittington and Barnett. In Part II, I devote attention to defining the alternative to originalism, a topic that seems neglected of late. As earlier debates should have made apparent, the alternative is not nonoriginalism, but rather traditional constitutional interpretation, which features a variety of methods.
In Part III, I advance my first objection against originalism, arguing that because it is offered as an alternative to the status quo of constitutional interpretation, it must be justified. The justification must match the significance of the change being advocated, which means it must be quite substantial. To date, no originalist has offered such a justification. This argument reveals that originalists have depended on an equivocation between advocating greater use of a current method of interpretation and advocating that we adopt only one method.
In Part IV, I present a second objection, arguing that originalism depends on using history without historicism, the use of evidence from the past without paying attention to historical context. Understanding American constitutionalism requires an appreciation of changing contexts, something originalism has difficulty acknowledging. The alternative to originalism here is not the somewhat nebulous idea of the living Constitution, but rather what I call developmental theory, or historicist theories of constitutional change. These theories represent a genuinely new development in constitutional theory and offer an important perspective on how constitutional meaning can legitimately change over time.
Keywords: constitutional theory, constitutional interpretation, originalism, historicism, equal protection, constitutional change
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