A Focus Group on Originalism

These are the best of times and the worst of times for originalism. On the positive side, originalism has never been so discussed in the legal academy and, in the modern era, never have originalist arguments been taken so seriously on the Supreme Court. On the negative side, originalism has never been so fragmented with so many competing justifications and such fundamental differences in the methods for ascertaining the meaning of particular provisions of the Constitution.  And, as Steve Smith, has written in these pages, some originalists believe that the judiciary has such a large role to play in choosing how to make operational constitutional provisions deemed radically indeterminate that originalism seems no longer to create any restraints on the judiciary—one of its original, and, in Steve’s view, salutary functions.

Some of the current discontents of originalism may be an inevitable consequence of its success.  Academics do not succeed by parroting the old theories, but by minting new ones: the multiplication of justifications and methodologies for originalism is the inevitable result. But this academic economy of theorizing does not mean that originalism has not greatly been greatly enriched from being pushed and pulled by ambitious professors of varying ideologies.  The most salient questions about both the persuasiveness of originalism and its practice are clearer than they were in the days when it functioned as a theory of judicial restraint. And despite the differences among originalists,  originalists of various views are far less likely to talk past one another than were constitutional theorists of the past who began from utterly  incompatible premises.

Over the weekend, I met with group of mostly young  academics to talk about some of the internal debates within originalism.  What I heard would have cheered Steve Smith. Despite the different theories of originalism, there seemed to be a consensus on a first point and a near consensus on a second that combine to provide an anchor for originalism, making it again a restraint on the judiciary, even if that is no longer its justification.

First, while participants disagreed about whether the Constitution had provisions that are irreducibly unclear or vague, there was general agreement that much of what passes for ambiguity and vagueness is a measure of modern ignorance about how the terms would have been understood at the time they were enacted. Much of the best work of originalism today is focused on dispelling our current ignorance, thereby narrowing vagueness and ambiguity.   A participant noted, for instance, that John Stinneford’s work on the Eighth Amendment had shown that the Cruel and Unusual Punishment had a more determinate meaning than that which might appear to a modern reader, because the wold “unusual” was a term infused with legal meaning that meant “contrary to long usage.”

Second, even in cases where genuinely irreducible ambiguity and vagueness may exist, there was general doubt that it was the judiciary’s role to fill in these interstices. Judicial review exists only to enforce the higher law when it actually conflicts with a statute or executive branch action. So long as a statute was within the range of an  irreducibly ambiguous or vague provision, it was not the role of the judiciary to invalidate it. This limitation on the judicial role flowed from the concept of judicial power in Marbury itself as well as the history of judicial review that was a component of that power before the Constitution and immediately after its enactment.