Originalism as Popular Constitutionalism?: Theoretical Possibilities and Practical Differences
Lee J. Strang
University of Toledo College of Law
July 7, 2011
Notre Dame Law Review, Vol. 87, No. 1, 2011
University of Toledo Legal Studies Research Paper No. 2010-16
The common perception is that originalism and popular constitutionalism are incompatible. Supporting this perception is the widely-shared opinion that most advocates for popular constitutionalism are liberal while most originalists are conservative-libertarian. Not only is this the perception, it has a basis in reality. Looking at the names of leading originalists and popular constitutionalists reveals that there is significant overlap between originalism and conservatism-libertarianism, and between popular constitutionalism and liberalism.
In this Article, I argue that the common perception that originalism and popular constitutionalism are incompatible is mistaken. Instead, I show that there is no uniquely correct answer to the question of whether and/or how originalism is compatible with popular constitutionalism. Instead, because of the theoretical compatibility of the two methods, the conceptual distance between popular constitutionalism and originalism depends on the particular conception of originalism one is utilizing. With some conceptions, the differences between popular constitutionalism and originalism loom large. With others, the similarities emerge prominently.
I argue that whether originalism is related to popular constitutionalism is contingent on the form of originalism in question. I describe five axes upon which originalism pivots toward or away from popular constitutionalism. These five axes are: (1) whether originalism embraces departmentalism in place of judicial interpretative supremacy; (2) whether originalism requires judicial deference to popular interpretative judgments; (3) the extent to which the Constitution’s original meaning permits the popular branches to engage in authoritative constitutional interpretation; (4) the extent to which the popular branches authoritatively construct constitutional meaning when the Constitution is underdetermined; and (5) whether originalism includes a place for nonoriginalist precedent.
This raises the question, however, of why originalism is identified with conservative constitutional theory and popular constitutionalism with liberal constitutional theory. I therefore offer three reasons why, despite the theoretical compatibility of originalism and popular constitutionalism, they do not converge in perception and practice.
Number of Pages in PDF File: 37
Keywords: originalism, popular constitutionalism, constitutional construction, departmentalism, judicial supremacy, judicial restraint, precedent
Date posted: August 14, 2010 ; Last revised: July 17, 2011