Why is Originalism Appealing?
At his new blog, Eric Posner notes that he and Will Baude are teaching a course in originalism at the University of Chicago Law School. Here is the syllabus, which looks good.
Eric writes about his motivations for the course:
I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics.
These are interesting questions. So let me take a crack at them. Why is originalism so appealing? And why is more appealing to conservatives?
This is a complicated matter, but here let me offer at least some ideas. Originalism has appeal both for internal reasons relating to the idea itself and for external reasons relating to the consequences of adopting it. The idea that a written law should have the meaning that it had at the time of its enactment seems extremely intuitive and part of how we understand legislation and other written enactments. The notion that a lawgiver would not know what his law meant – that it would have a meaning that he could not have known if he thought about it, but that depends on changes in values – seems extremely counterintuitive. It seems to be an obvious power grab by the interpreters, such as judges.
In my view, this intuitive reason primarily explains why originalism has a certain appeal across the spectrum and is why the ordinary person is usually an originalist.
The external reasons relating to the consequences explain why it is especially appealing to consevatives. Conservatives believe that liberal judges have changed the Constitution through interpretation. Thus, the consequence of nonoriginalism has been to undermine their political views. The combination of an intuitive nonpolitical reason explaining why a political result one dislikes is extremely powerful.
It is true that originalism does not always lead to conservative results. But the above appeal of originalism more than outweighs these disappointments — and these disappointments have the benefit of showing the conservative originalist that he is actually enforcing the Constitution, not his own values.
This analysis also helps to explain libertarian and liberal originalism. Libertarians also believe that the original meaning of the Constitution has been mangled and that it supports their vision of the world. It is true that libertarians are less inclined to accept as morally binding a law written
many years ago, because of their distrust of political authority. But libertarians are extremely attracted to the notion of a higher law limiting the government. And the notion that the Constitution is a libertarian-ish document that liberal (and conservative) interpreters have rewritten, while claiming to enforce it, has strong appeal to them.
Finally, there is liberal originalism. This is more complicated. But briefly let me just say that I understand Jack Balkin’s book as an attempt both to derive support from the intuitive idea of originalism and to disarm it as a critique of the living Constitution.