fbpx

How Old is Originalism?

Michael Greve recently published a piece entitled Originalism as Ideology which criticizes originalism and argues that it may have “run its course.”  Greve’s essay covers a lot of ground, but I thought it might be useful to discuss one key aspect of it that is of wider concern: how old is originalism?

According to Greve, originalism was born approximately in 1982 as a means of combatting Warren Court judicial activism.  He believes that in some ways it has been stupendously successful, but it is time to move on.

But is this right?  In my view, Originalism is not a thirty seven year old ideology, but a legal idea that is as old as the Constitution.  The main interpretive approaches at the time of the Constitution’s ratification were originalist.  First, Alexander Hamilton’s interpretive approach was originalist.  Under original methods originalism – which in my view is the best originalist approach – one should look to the interpretive rules that existed at the time to discern its original meaning.  As Hamilton said in 1791, “whatever may have been the intentions of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.”  Using the conventional methods was the dominant approach in the early years.

The principal competing approach was that of Thomas Jefferson, which viewed the Constitution as a compact among the states.  Jefferson’s approach was also originalist.  He argued that one should look to the original intent as evidenced by the actions of the ratification conventions.  Significantly, Jefferson also was arguing for applying the conventional methods at the time – he simply believed that different conventional methods applied because he thought of the Constitution not as fundamental law, but as a compact among the states.

Thus, originalism was dominant from the beginning.  And it continued to be dominant through the Civil War.  At some point after the Civil War, it began to weaken a bit.  Finally, it was exiled through a combination of the Progressive criticisms of the Constitution and New Deal court packing.  By the 1940s, originalism was dead.  At first, it was replaced by a form of judicial restraint, and then by Warren Court judicial activism.  Neither of these approaches was friendly to originalism.

Eventually, some people opposed to these movements – especially Warren Court activism – came to settle on originalism and the modern originalism that Greve talks about emerged.  But it is a mistake to see this emergence as the birth of originalism.  Instead, it was an attempt to rediscover originalism.

It has taken some time for a genuine originalism to be rediscovered (what Greve refers to as originalism being “repeatedly reformulated”).  But this should not be surprising.  Originalism had been dormant for many years.  And when it became active again, it faced many obstacles.  Besides figuring out the historical methods for determining the original meaning, one needed to figure out how to apply these methods to a Constitution that was no longer a generation or two old, but that had been in existence for more than two centuries.  So modern interpreters needed to figure out how to discover the meaning of older words from a different legal world.  And originalism also needed to defend itself against a modern academy that was filled with theoretical arguments for different positions.

So modern originalism has changed a bit over its 37 years.  But that is all understandable when one realizes it is merely seeking to rediscover the original method for interpreting the Constitution and to defend those methods against modern critiques.

Greve says it is time to recognize that originalism has passed its period of usefulness.  By contrast, I would say it is time to recognize what modern originalism is and that it is attempting to restore the original methods for interpreting our Constitution.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 25, 2019 at 10:35:48 am

You missed one of my favorite quotes by James Madison:

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption. Not to look further for an example, take the word “consolidate” in the address of the Convention prefixed to the Constitution. It then and there meant to give strength and solidity to the Union of the states. In its current & controversial application it means a destruction of the states, by transfusing their powers into the government of the Union."

https://founders.archives.gov/documents/Madison/04-03-02-0333

read full comment
Image of Devin Watkins
Devin Watkins
on April 25, 2019 at 16:24:21 pm

Originalism is meaningful judicial review, i.e. strict scrutiny, which was the entire purpose of the bill of rights from the beginning--to make sure congress "made no law" so rights "shall not be infringed".

What's modern is mock judicial review, i.e. rational-basis scrutiny, where the court doesn't even provide a reason [legitimate government interest] for upholding the statute , they just assume it's constitutional and uphold it as presumptively within congress' limited enumerated powers.

read full comment
Image of Alexander Porkilton
Alexander Porkilton
on April 25, 2019 at 17:30:55 pm

"...they just assume it’s constitutional and uphold it as presumptively within congress’ limited enumerated powers."

EXCEPT when the Proggies can muster five votes to declare that something they DON'T LIKE is unconstitutional.

read full comment
Image of gabe
gabe
on April 25, 2019 at 21:51:11 pm

Oh, were a lot of doctors released from prison after Roe v. Wade? Or did the decision have no effect whatsoever?

I think Wickard and Korematsu did far more harm than Roe or Obergefell.

read full comment
Image of Deaderpool
Deaderpool
on April 27, 2019 at 16:09:14 pm

Originalism is lost to law school students when they are told that Marbury v. Madison established for the Judiciary "the power to interprete the law". NOT SO. To "interpret" means to understand. The Judiciary has a duty to UNDERSTAND the Law. Too many Judges prefer to escape their "duty" by converting it into a "power". Unfortunately Law School professors have aided their ability to do so.

Read carefully Marbury v. Madison. Justice Marshal said that the Judiciary has a duty to say WHAT THE LAW IS. Even if they are saying to President Thomas Jefferson he has over stepped the boundaries of the Law. The Law "is" what those who wrote the Law intended when they wrote it. Our very first Supreme Court Chief Justice Marshall was an ' originalist'.

read full comment
Image of Ed Heimlich
Ed Heimlich
on June 14, 2019 at 06:02:11 am

[…] to which the Framers themselves were committed to reading and arguing about constitutionalism with a sincere attention to the meaning of text alongside the imperatives of […]

read full comment
Image of American Monologue
American Monologue

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.