Monday, January 20, 2014

Why Are Americans Originalist?


I have posted my latest essay, Why are Americans Originalist?, on SSRN.  It is an attempt to explain to non-Americans why originalism has such influence in American federal constitutional argument but lacks a similar degree of influence in the interpretation of the constitutions of other democracies, or even in the interpretation of the fifty American state constitutions. The answer is that originalism is a feature of American national culture, deeply connected to narratives of American national identity. Here is the abstract:

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This brief essay, addressed to scholars outside the United States, attempts to explain why originalism is popular in debates over the American federal Constitution. If as its advocates sometimes maintain, originalism is the most legitimate method of interpretation in a democracy, one would expect advocates in every constitutional democracy in the world to demand that judges use it. Yet although originalism has made inroads in Australia and a few other countries, it is largely ignored elsewhere in the world. Although the “thin” version of original meaning advocated in Living Originalism would not be particularly controversial in most constitutional democracies, "thicker" versions of originalism that require judges to follow how a constitution's adopters would have understood or applied the text have little influence outside the United States or even in the interpretation of the fifty indigenous state constitutions. Originalism’s authority in debates about the American federal Constitution rests on cultural factors rather than a unique American commitment to the rule of law or popular sovereignty.

American originalism is primarily a nationalist idea. It arises from distinctive features of American cultural memory -- namely, that in popular imagination the American nation was created by Americans themselves through a self-conscious act of political revolution, and that the American nation, people, and constitution came into being more or less simultaneously through this initial act of self-creation. A similar story is not told in most other political cultures. This story has helped encourage Americans’ special veneration of the founding generation and particular figures within that generation (like George Washington and James Madison) as culture heroes.

The self-conscious invocation of originalism as a general theory of interpretation is relatively recent; it is a response to constitutional modernity, in which Americans found themselves increasingly distanced from the past and sought to justify political reforms. Academic theories of originalism proliferated in American law schools in response to the political uses of originalism in the twentieth century. Yet as these theories have become increasingly sophisticated there is often little connection between them, the popular uses of originalism, and the way that originalist arguments are actually deployed (or ignored) by practicing lawyers and judges.

Americans use originalism as a political practice for critiquing the status quo (whether in a liberal or conservative direction) and arguing for change, sometimes quite radical. Appeals to origins serve as a precedent-breaking device -- they help justify a break from current practices by appealing to an even older tradition. This explains a little-understood fact about American originalism. The originators of originalism as a self-conscious approach to interpretation were not movement conservatives -- they were New Deal liberals. The increase in citations to originalist materials in Supreme Court opinions begins with Justice Hugo Black and the Warren Court. New Deal liberals committed to judicial restraint needed a way to justify exercising judicial review to protect individual rights. They turned to history to do so. Movement conservatives, who sought to break from liberal precedents, then flipped the political valence of originalism; they were so successful that originalism's origins as a liberal justificatory device have largely been forgotten.

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