Duke Law Journal, Vol. 59, p. 239, 2009
69 Pages Posted: 6 Feb 2008 Last revised: 9 Oct 2009
Date Written: October 7, 2009
Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists—the “framers” of originalism, if you will—as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated—and continue to articulate—a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation.
Our account of originalism’s evolution—and of the extensive disagreement among originalists today—undermines originalists’ normative claims about the superiority of their approach. Originalists’ claims about the unique and exclusive legitimacy of their theory—that originalism self-evidently represents the “correct” method of constitutional interpretation—founder when one considers that originalists themselves cannot even begin to agree on what their “correct” approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and thus that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism; because each version has the potential to produce a different constitutional “meaning,” the constitutional meaning that a committed originalist judge would find turns out to be anything but fixed. As originalism evolves, the constitutional meanings that it produces evolve, too. Today’s originalists not only reach results markedly different from those originalists reached thirty years ago, but also produce widely divergent results amongst themselves. Judges committed to the originalist enterprise thus have significant discretion to choose (consciously or subconsciously) the version of originalism that is most likely to dictate results consistent with their own preferences. As such, originalism suffers from the very flaws that its proponents have identified in its alternatives.
Keywords: constitutional law, originalism, constitutional interpretation, interpretation
Suggested Citation: Suggested Citation
Colby, Thomas and Smith, Peter J., Living Originalism (October 7, 2009). GWU Legal Studies Research Paper No. 393; GWU Law School Public Law Research Paper No. 393; Duke Law Journal, Vol. 59, p. 239, 2009. Available at SSRN: https://ssrn.com/abstract=1090282