Originalism's Claims and Their Implications
104 Pages Posted: 8 May 2018
Date Written: January 1, 2018
In this article I explore six of the most fundamental disagreements between originalism and its critics over originalism’s implications. These implications — and the implications of the critics’ alternatives — figure prominently in the arguments advanced in the debate. Reconstructing these arguments in their strongest possible form permits the confusion and misdirection in the debate over originalism to emerge.
First, originalism argues that it best comports with our republican democracy. Judicial review, performed by unelected judges with lifetime appointments, may appear inconsistent with the fundamental principles of our democratic republic. Originalism argues that deference to the original understandings or expectations with respect to the Constitution answers this challenge. The critics offer three principal replies to that claim. First, the originalist strategy of finding the original understanding and intentions with respect to the Constitution is rejected as undoable. Second, even if and to the extent that such intentions and understandings existed, the originalist project of finding meaning is rejected as blinkered and mechanical. Third, Bobbitt argues that the originalist premise is flawed: there is no need to reconcile judicial review and constitutional interpretation with democracy.
Second, originalism claims that it offers the only neutral method of constitutional interpretation. Critics deny the argument from discretion on a number of grounds. Third, originalism claims to offer a better account of the textuality of the written Constitution. Critics reject the arguments for that claim. Fourth, I examine how originalism limits constitutional change. Critics argue that the originalists fail to provide a plausible account of constitutional flux. Fifth, I assess the claim that originalism is necessary, and therefore any other inconsistent theory of constitutional interpretation is necessarily impossible. The critics rightly deny this singularly bold and implausible claim. Sixth, I examine the claim that originalism can restore the Lost Constitution, and, in so doing, radically change our constitutional law. Critics of originalism, and even some defenders, have questioned whether originalism can accomplish the mission set out for it. This skepticism is misplaced, at least on the terms on which originalism makes its constitutional argument.
When the claims advanced by originalism and by its critics are examined, they generally prove implausible or uninteresting. The debate over originalism has reached a stalemate on these key issues. The exchanges with respect to these claims offer no reason to rehabilitate or even to continue the originalism debate.
Keywords: originalism, constitutional law, living constitution, countermajoritarian dilemma, interpretation
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