Originalism is Bunk

96 Pages Posted: 28 Dec 2007 Last revised: 9 Sep 2009

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

Date Written: December 30, 2007


Critical analysis of originalism should start by confronting a modest puzzle: Most commentators suppose that originalism is deeply controversial, while others complain that it means too many things to mean anything at all. Is one of these views false? If not, how can we square the term's ambiguity with the sense that it captures a subject of genuine debate? Perhaps self-professed originalists champion a version of originalism that their critics don't reject, while the critics challenge a version that proponents don't maintain.

Contemporary originalists disagree over many things: Over which feature of the Constitution's original character demands fidelity (framers' intent, ratifiers' understanding, or public meaning); over why such fidelity is required, and over whether this interpretive obligation binds only judges or citizens, legislators, and executive officials too. But on one dimension of potential variability - the dimension of strength - originalists are mostly united: They believe that those who should follow some aspect of a provision's original character must give that original aspect priority over all other considerations. That is, when the original meaning (or intent, etc.) is satisfactorily discernible, the interpreter must follow it. This is the thesis that self-professed originalists maintain and that their critics (the non-originalists) deny. Non-originalists have challenged this thesis on varied wholesale grounds, including: that the target of the originalist search is undiscoverable or nonexistent; that originalism is self-refuting because the framers intended that the Constitution not be interpreted in an originalist vein; and that originalism yields bad outcomes. This Article proceeds differently. Instead of mounting a global objection - one purporting to hold true regardless of the particular arguments on which proponents of originalism rely - I endeavor to catalogue and critically assess the varied arguments proffered in originalism's defense.

Those arguments are of two broad types: hard and soft. Originalism is hard when grounded on reasons that purport to render it (in some sense) necessarily true; it is soft when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches. That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected already to accept; soft arguments aim to persuade others to revise their judgments of value or their empirical or predictive assessments. The most common hard arguments contend that originalism is entailed either by intentionalism or by binding constitutionalism. Soft arguments claim that originalist interpretation best serves diverse values like democracy, the rule of law, and substantive goodness. I seek to show that the hard arguments for originalism are false and that the soft arguments are implausible.

The upshot is not that constitutional interpretation should disregard framers' intentions, ratifiers' understandings, or original public meanings. Of course we should care about these things. But originalism is a demanding thesis. We can take the original character of the Constitution seriously without treating it as dispositive. That original intents and meanings matter is not enough to render originalism true.

Keywords: constitutional interpretation, originalism, intentionalism

Suggested Citation

Berman, Mitchell N., Originalism is Bunk (December 30, 2007). Available at SSRN: https://ssrn.com/abstract=1078933 or http://dx.doi.org/10.2139/ssrn.1078933

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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