Twenty Years of Originalism

Stephen Griffin

Long ago, I read an informative work on the history of philosophy called 100 Years of Philosophy. I have often wondered if a similar work could be written on constitutional theory, say, 50 Years of Constitutional Theory. That would take us back to the dispute over the legitimacy of Brown v. Board of Education when Alexander Bickel presumably began writing his 1962 classic setting forth the “countermajoritarian difficulty” (and a defense of Brown, let’s not forget). Would such a work conclude that constitutional theory has made progress or just changed the subject a dozen times?

We’ve had about twenty years of debate over originalism since the dawn of the “new originalism.” I’m about right on dates. Sometimes this is dated to a 1986 speech by Justice Scalia, other times to his more famous 1988 lecture, “Originalism: The Lesser Evil.” Other times to The Tempting of America, the book Judge Bork started writing after his Supreme Court nomination was defeated in 1987. The new originalism is public meaning originalism, the idea that some of the difficulties with originalism can be avoided by stressing public meaning rather than private intent. Anyway, that’s the originalist storyline. It starts with originalism battling nonoriginalism in the 1980s, but suffering from wounds inflicted in articles by scholars like Paul Brest and H. Jefferson Powell. Advocated most clearly by Justice Scalia, public meaning originalism picks up steam in the 1990s. Scholars start to realize its advantages, it prevails over the “subjective” original intent variant, and nonoriginalism increasingly lies helpless and forlorn.

Today’s originalists still seem attached to the originalism/nonoriginalism distinction. In a recent example of the use of the distinction, constitutional scholar Michael Ramsey made clear that he thought scholars were still divided into originalist and nonoriginalist camps. Ramsey relied on Justice Scalia in contending that nonoriginalism “is united only in agreement that originalism is not the right approach; it would substitute a bewildering array of proposals, yet agrees upon none.”

This is a shame, because about the time originalists discovered public meaning originalism, most of the scholars they call “nonoriginalist” began concluding that the distinction was flawed, barely more helpful than the “interpretivist/noninterpretivist” distinction it replaced. (One point critical legal scholars were dead on target about is legal scholarship’s love of dualisms. When a lawyer presents you with a dualism, you should always start thinking about the alternative being suppressed.) The distinction was criticized effectively by David Hoy, Lawrence Solum, and, I admit, myself. By the late 1990s, most scholars outside the camp originalists had built for themselves had concluded that either “we are all originalists” or the term just wasn’t helpful. Today, scholars like Sotirios Barber and Jim Fleming (in their 2007 book on interpretation) distinguish among forms of originalism, not between originalism and nonoriginalism. The originalism/nonoriginalism distinction is not a helpful way to describe the debate. But it does tend to make originalism look like the status quo – something it is certainly not, at least not the popular variant I call “exclusive originalism,” the idea that originalism is the sole legitimate method of constitutional interpretation.

There’s another way to view the course of the debate in the 1990s, a storyline that moves us away from originalism/nonoriginalism. In this story, at the level of interpretation, scholars pick up on the importance of the pluralistic theory of interpretation pioneered by Philip Bobbitt. Various scholars like Akhil Amar and David Strauss start developing individual methods of interpretation to new levels of sophistication. In addition, scholars became sensitized to the important questions raised by constitutional change outside Article V. Bruce Ackerman and Sandy Levinson were important here. The countermajoritarian difficulty and the traditional debate over judicial restraint (an important ally of originalism) became less important as a practical matter as it was apparent that no justice on the Rehnquist Court was interested in being restrained. The kind of restraint tradition associated with Justice Frankfurter disappeared. (There was another giant unproductive detour in the 1990s that I’ll have to reserve for another time – the debate over “fidelity” to the Constitution. The very use of this term biased the debate toward originalism.) Anyway, in a “non-restraint” world, lots of the traditional reference points for debate in constitutional theory lose their meaning.

Let’s remember the last time a major legal scholar published a book defending nonoriginalism. Any examples in this century? Or in the 1990s? The footnotes I’ve seen in originalist articles citing supposed scholars who represent the opposite “nonoriginalist” camp are pretty thin. I believe in his 1988 lecture, Justice Scalia cited Laurence Tribe as an example. Have a heart! Tribe is clearly a pluralist (check out the 3rd edition of American Constitutional Law), not a true believer in something called “nonoriginalism.” Let’s at least try to adopt the internal point of view toward theories we criticize. We are likely to learn more that way. Once you do this, you’ll see there’s little more substance to “nonoriginalism” than the abandoned “noninterpretivism.” It’s a relic.
Posted 11:12 PM by Stephen Griffin [link]