40 Pages Posted: 31 Jan 2014
Date Written: 2013
When conservatives in the 1980s offered originalism as a constitutional methodology that could limit perceived judicial excesses, they touted its ability to constrain judges to follow the Constitution’s fixed, original meaning. Though originalism has changed many times since, its proponents still generally preach these related virtues of fixation and constraint. This symposium contribution reviews recent scholarly developments in originalism and contends that originalism’s capacity to fix constitutional meaning and constrain judicial decision making is overstated in both practice and theory.
In practice, originalism’s many variants provide the ostensibly originalist justice great interpretive flexibility. Originalist justices are methodologically inconsistent, offering an array of arguments rooted in original intentions, understandings, expected applications, and public meanings. The justices also disagree on when originalism should guide outcomes, further adding to its malleability.
In theory, the new originalism, which focuses on the text’s original public meaning, corrects some of these problems. Nevertheless, it too often falls short of its promises to deliver fixation and constraint. While fixation is possible in some instances, the history and semantic practices surrounding many disputed clauses are too muddled for the interpreter to identify a single, original public meaning. Moreover, many constitutional provisions were framed and ratified during periods of profound intellectual flux, when key constitutional concepts and terms changed shape rapidly. Indeed, the very process of constitution making may have added further indeterminacy, as many members of the Founding and Reconstruction generations understood constitutional language not to provide precise legal guidance but rather open-ended political compromise. As for constraint, many new originalists intelligently concede that their theory constrains only insofar as constitutional construction must not violate the text’s original public meaning. However, by requiring such fidelity to the constitutional text, the new originalists, far from cabining judicial discretion, invite justices to revisit settled constitutional precedent. To be fair, other interpretive approaches similarly fail to constrain justices, but originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty.
Keywords: originalism, constitutional interpretation, constitutional history, constitutional methodology
Suggested Citation: Suggested Citation
Berger, Eric, Originalism's Pretenses (2013). University of Pennsylvania Journal of Constitutional Law, Vol. 16, No. 2, p. 329, 2013. Available at SSRN: https://ssrn.com/abstract=2387879