Has “Originalism” Lost Its Way?

We all know the basic story. In the 1960s and 70s, the Supreme Court rendered decisions and announced doctrines that seemed to have only the remotest connection, if any, to the actual Constitution that the enactors had thought they were adopting. Roe v. Wade was perhaps the most egregious example. These decisions and doctrines seemed in severe tension with American commitments to democratic decision-making and rule of law. In the academy, one response to this perceived tension was a massive project, still on-going, to rationalize the Court’s doings. A different response was the emergence of a movement usually called “originalism.” This movement aspired to rein in a roaming judiciary and to drag constitutional law back to the understandings that had actually informed the enactment of the Constitution and later amendments.

In the 1980s and 1990s, the originalist movement gained momentum, and sophistication, and this development continued in the new century. Today originalism claims the consistent support of at least two Justices, and the interest and support of numerous scholars. It generates large quantities of scholarship, both historical and theoretical, much of it of high quality. Every year the Center for the Study of Constitutional Originalism, administered by my colleagues Mike Rappaport and Mike Ramsey, sponsors a superb conference at the University of San Diego, which attracts major scholars from the most prestigious universities.

The progress of originalism is impressive–and all to the good, I think. And yet I sometimes wonder: somewhere along the way did originalism . . . well, lose sight of its central purpose– of its “original intention,” so to speak. (I have elaborated on some of my reservations here.) The fact that high-profile “progressive” scholars like Michael Perry back in the 1980s and more recently Jack Balkin can convert to originalism without in any way altering their capacious conception of the Court’s role might be a sign that, somewhere along the line, originalism may have gotten off the track.

Of course, more conservative originalists may question whether Perry and Balkin truly deserve to be included in the fellowship at all. But my sense is that Perry and Balkin are in good faith; they don’t seem to be acting as subversive infiltrators or impostors. More importantly, what Perry, Balkin, and other more progressive originalists do seems authorized by originalist orthodoxy. After all, they are merely working from a distinction that even most conservative originalists (not all) insist on– namely, the (ostensible) distinction between “meaning” and “expected applications.” Once you say that the “meaning” of a constitutional provision can deviate from what the enactors expected the provision to do, and can instead incorporate some “principle” or “norm” whose scope and implications the enactors only imperfectly comprehended, there is nothing– nothing in originalism, anyway– to preclude the Perrys and Balkins of the profession from arguing for expansive interpretations that would leave the enactors shuddering in their graves.

All of this makes me wonder whether it was a mistake to say that constitutional interpretation should seek to discern and conform to “original meaning” (whether conceived in intentionalist or “public meaning” terms). Upon reflection, and with benefit of hindsight, I suspect that although “original meaning” comes very close, it is not– or should not be– the guiding criterion. Not exactly. Not as the concept has come to be understood anyway.

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean. (Am I exaggerating? Maybe, a little. But then again, would the people who enacted the Fourteenth and Fifth Amendments have thought so if they had been vouchsafed a vision of Roe v. Wade . . . or United States v. Windsor?)

Nor is that distressing conclusion altered if a theorist comes forward and proclaims, “Ah, but I have a fancy little hermeneutical theory that shows how this consequence, however shocking to or unanticipated by the enactors, can be deemed an ‘interpretation’ of the ‘original meaning’.” Not even if the theory is sophisticated and persuasive. The goal, once again, was and should be to let “We the People” govern ourselves, deliberately and rationally. If “original meaning” (as scholars have come to understand it) frustrates that goal, then so much the worse for “original meaning.”

And so I wonder: might it be good if some new movement were to emerge, some movement devoted to the true criterion for constitutional interpretation? Unfortunately, although I’ve tried to describe that criterion here in rough terms, I don’t even have a neat label for it. (A few years ago, in a draft that was eventually and deservedly abandoned, I tried to talk about the necessity of a “maker-meaning nexus.” I won’t hold my breath waiting for that one to catch on!) But I warmly invite someone more clever and more energetic than I am to coin the appropriate terms and initiate the movement. And may the movement prosper as well as “originalism” has done!