Originalism's Implementation Problem

Abstract

Originalism has received a great deal of public attention, both in the media and political sphere. In the legal academic sphere, originalists portray originalism as the dominant form of constitutional interpretation, asserting that it brings constraint to judges and is consistent with democratic values. Despite this, originalists spend little effort explaining how originalism is to be implemented by practicing attorneys and judges, and even less effort responding to the obstacles of implementing originalism as a method of constitutional interpretation.

This Article considers multiple originalist methods and finds that they are all lacking. Originalism as a method is too cumbersome or prone to abuse to provide the constraint and attention to democratic values that its supporters claim. Studying the constitutional record and immersion in founding-era texts require expertise in formal historic research methods, which most judges and attorneys lack. The recently developed method of corpus linguistics runs into similar obstacles as well, along with distinct problems including opaque coding methods and skewed source materials.

Of the few originalists to contemplate these concerns, several suggest that while judges and attorneys may lack the time and resources necessary to engage in thorough investigations of original public meaning, those in academia may conduct the research upon which practitioners may rely. This purported solution fails. The sheer volume of potential outlets for originalist scholarship, coupled with the fact that most law review and journal editors are not professional historians, means that shoddy, goal-oriented scholarship is likely to be published. As a result, judges and attorneys may select from whatever scholarship supports their preferred outcomes. To the extent that judges and attorneys attempt to select for higher quality scholarship—say, by only citing to top authors or journals—this results in widening the gap between originalist interpretation and democratic values, as the original public meaning of the Constitution is determined only by what the most prominent law professors end up publishing in the most elite journals.

Originalism is often touted by its supporters to be a way of finding objective answers to contentious constitutional questions. But if originalism is ever to be implemented with the rigor presumed by academic originalists, these originalists must confront the serious obstacles to implementing their methods that this Article raises. We conclude that originalists are unlikely to meet these objections, and that academic originalism and “originalism” as understood in political discussions and judicial opinions will remain disconnected. At the very least, we hope that this Article prompts originalists to devote greater efforts to addressing and attempting to overcome the problem of implementing originalism.

Keywords: originalism, constitutional law, history, precedent, practice of law, politics, constitutional record, corpus linguistics