How to Critique Originalism

Stephen Griffin

Like Mark, I recently finished an article, but it won’t be posted on SSRN until it goes through the wash several more times. It is a critique of the “new originalism,” that is, the sort of “public meaning” originalism associated with Randy Barnett, Keith Whittington, and many other scholars who have some connection with the Federalist Society. In fact, I have the impression that public meaning originalism is now the FS house theory of constitutional interpretation. I’ve never attended a FS meeting, however, so I could easily be wrong (I’m relying on a 2003 article by Kesavan and Paulsen).

Because originalism has been discussed recently here, I should say immediately that I don’t think my critique applies to JB’s version of “text and principle.” It’s hard for me to tell whether JB’s method is really one that originalists would recognize and feel comfortable with. My hunch is that they will never regard JB’s method as a form of originalism. Time will tell, but I need to learn more about JB’s method before I feel comfortable evaluating it. So the article is about new originalism conventionally understood and probably does not apply to text and principle.

Part of the reason I wrote the article is because I was dissatisfied with the conventional list of objections to originalism. I rarely saw the objections I thought important on the list. This is partly because a crucial issue is often neglected. When the case for originalism is pressed, are its advocates claiming its legitimacy as one form of interpretation among others, or that it is the only (or at least primary) legitimate method of interpretation? My critique is directed solely against the latter view, which I call exclusive originalism. Exclusive originalism has real bite as a constitutional theory. It asserts that other methods of interpretation are wrong or illegitimate and thus that some long-standing constitutional doctrines are wrong or illegitimate. Exclusive originalists claim that the Supreme Court should use public meaning originalism as the sole way of interpreting the Constitution. It could be questioned whether there are any real exclusive originalists, but I’m pretty certain at least some scholars qualify (including Barnett and Whittington), although it is questionable whether any judges do.

My first objection involves defining the alternative to originalism, a topic that seems neglected of late. As earlier debates in the late 1980s and 1990s should have made apparent, the alternative to originalism is not “nonoriginalism,” but rather traditional or conventional constitutional interpretation, which features a varieties of forms, modes, or methods. The historical method (what we should call originalism) is a valid way to interpret, but there are others. All of them are connected to the historic tradition of American constitutionalism.

So exclusive originalism is not the status quo. Adopting it would in fact be a radical change. I argue that because originalism is offered as an alternative to the status quo, it must be justified. The justification must match the significance of the change being advocated, which means the justification must be quite substantial indeed. To date, originalist scholars have never offered such a justification. They have depended on an equivocation between advocating greater use of a current method of interpretation and advocating that we adopt only one method.

I also present a second objection to originalism that has been relatively neglected in recent scholarship. Originalism depends on using history without historicism, the use of evidence from the past without paying attention to historical context or the reality of informal constitutional change outside Article V. Understanding American constitutionalism requires an appreciation of changing contexts, something originalism has difficulty acknowledging. The alternative to originalism here is not the now somewhat nebulous idea of the “living Constitution,” but rather what I call “developmental theory,” or historicist theories of constitutional change. Examples include Ackerman’s theory of transformative moments, Balkin and Levinson’s “partisan entrenchment,” and my own institutional approach.

This is just an article summary, of course. I hope to make some additional posts with respect to material I couldn’t include. Even though I critique them in the article, I have a great deal of respect for Whittington and Barnett and their effort to refurbish originalism. And I’m not sure some of their critics really get where they are coming from. I have in mind the recent book by Sotirios Barber and Jim Fleming, Constitutional Interpretation: The Basic Questions. But that’s for later (or for APSA – there’s a panel on the new originalism).
Posted 10:55 PM by Stephen Griffin [link]