Hastings Law Journal, Vol. 62, 2011
31 Pages Posted: 6 Nov 2010 Last revised: 11 Mar 2011
The academic debate about originalism remains vibrant and dynamic, and the theoretical case for originalism is more nuanced now than ever before. So nuanced, in fact, that - at least as described by several prominent originalists - originalism is no longer very different, either in theory or in application, from non-originalism. These self-described “new originalists” have begun to contend that the objective original meaning of many of the Constitution’s provisions - including the broad rights-granting provisions in the Fourteenth Amendment - should be ascertained at a very high level of generality. They have also urged recognition of a distinction between constitutional “interpretation,” which involves the determination of the meaning of the constitutional text, and constitutional “construction,” which involves the formulation of legal rules to apply the text - particularly when it is vague or open-ended - to concrete situations. These scholars have noted that because the constitutional text often is phrased at a very high level of generality, originalist interpretation alone simply cannot answer many difficult questions of constitutional law, and thus courts must formulate rules that are not themselves dictated by the original meaning.
If this is what originalism entails, then there is no obvious distinction, at least in practice and possibly in theory, between the new originalism and non-originalism. After all, most non-originalists treat the original meaning as the starting point for any interpretive inquiry, but are willing to look elsewhere - to history, precedent, structure, and policy, among others - to construct constitutional meaning when the text is vague or indeterminate.
All of this naturally leads one to question how different originalism and non-originalism really are. The short answer is that it depends on who we ask, because not every originalist - indeed, not even every “new originalist” - accepts these recent modifications to originalist thinking. Given modern originalism’s origins as a response to the perceived excesses of non-originalism, it is not surprising that many originalists have resisted refinements to the theory that would tend to collapse the distinction between originalism and non-originalism. But the growing rift among originalists poses a greater risk to originalism than the mere prospect of intramural disagreement. Much of the force of the case for originalism has long derived from its claims to neutrality and objectivity. As the originalist tent grew, embracing scholars with a broad range of substantive commitments, these claims became perhaps more plausible. But originalists’ rejection of the new new originalists’ claims - claims that follow quite naturally, even if not inevitably, from the most important moves of the new originalism itself - and their continuing insistence on an approach to constitutional interpretation that usually produces substantively conservative results have threatened once again to undermine their claims to neutrality and objectivity.
As originalism has evolved, in other words, it has increasingly presented its long-time proponents with a choice between equally unappealing options: they can acknowledge that originalism is a limited theory of interpretation that alone cannot answer many questions of constitutional law, and thus accept judicial creativity in implementing the Constitution’s abstract principles; or they can instead continue to claim that originalism can effectively answer most constitutional questions without any need for broad judicial discretion. If they choose the former, they essentially accept that originalism is not meaningfully different from non-originalism. If they choose the latter, they risk revealing originalism as a political philosophy, rather than an interpretive methodology. Originalists’ choice will in large part determine the continuing viability of the methodology.
Keywords: Originalism, Constitutional Interpretation
Suggested Citation: Suggested Citation
Smith, Peter J., How Different are Originalism and Non-Originalism?. Hastings Law Journal, Vol. 62, 2011; GWU Law School Public Law Research Paper No. 517. Available at SSRN: https://ssrn.com/abstract=1702874