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The version of originalism popularized in the 1980s viewed itself as a reform movement, responding to the perceived excesses of the Warren and Burger Courts. It made few claims regarding originalism’s historical pedigree. Justice Scalia memorably articulated the position in his 1989 essay Originalism: The Lesser Evil:
It may surprise the layman, but it will surely not surprise the lawyers here, to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis. It would be hard to count on the fingers of both hands and the toes of both feet, yea, even on the hairs of one's youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean.
Justice Scalia and the New Originalists of the 1990s were not troubled by the notion that they were engaged in law reform. As Justice Thomas put it in his memoir, “any job worth doing is worth doing right.” Being a Supreme Court Justice is worth doing, and for Justices Scalia and Thomas, originalism is the way to do that job right.
Recently however, originalists have argued that their preferred methodology was also the methodology of the Supreme Court of the Early Republic. As I have argued in an article just posted on SSRN, there are two problems with this claim. First, the current breadth of the originalist camp makes it possible to call any approach originalist, so long as it acknowledges that the constitutional text or the Framers’ intentions should be given some weight in the interpretive project. Second, the claim relies on cherry-picked citations from the early courts and ignores their tendency to cite original meaning or intention without any research into either. In the Marshall Court, gestures towards the Framers’ intentions become the sleight of hand through which the Justices obscure other interpretive modalities, such as appeals to natural law, common sense, historical precedent, or pragmatic considerations. As many other historians and legal scholars have concluded, I found that the Marshall Court’s interpretive methodology was not as limited as some versions of originalism would have it. That Court’s approach was flexible and pluralist, drawing on existing common-law and statutory interpretive traditions.
The case for originalism does not rise or fall on the Marshall Court’s practice. Normative arguments that some version of originalism is the best way to protect liberty, constrain judges, promote democratic values, or secure the welfare enhancing benefits of rules derived from supermajoritarian processes need not be cast aside because the Marshall Court was pluralist. Still, the Marshall Court’s interpretive method is relevant to contemporary discussions about originalism in at least some contexts.
First, at the highest level, the Marshall Court’s practice raises questions that go back to H. Jefferson Powell’s and Paul Brest’s challenges to originalists from the 1980s. Can originalism be right if the Framers never intended for their intentions and understandings to bind future generations? The Marshall Court’s interpretive methodology embraced elements of pragmatism that suggest a flexible attitude towards textual constraints. That flexibility can be reconciled with versions of originalism that foreground structural or purposive approaches to constitutional fidelity, but it undermines textualist approaches, such as the hyper-textualism of corpus linguistics methods.
Second, the Marshall Court’s interpretive method must be relevant to original methods originalists. In Stuart v. Laird, and McCulloch v. Maryland, the Justices indicated considerable sympathy for the notion that practices of questionable constitutionality (Supreme Court Justices serving simultaneously as Circuit Court Judges and the establishment of a national bank) become constitutional over time, so long as they are not “bold and daring usurpations.”
Third, Will Baude and Stephen Sachs’s positivist defenses of originalism rely at times on historical claims about what courts do. Baude argues that originalism is “our law” because courts interpret the constitution in accordance with originalist tenets, broadly construed, and because judges never reject such originalism as the basis for constitutional interpretation. Their position does not rise or fall with the practice of the Marshall Court, but that Court’s practice is certainly relevant to Baude’s empirical claim that originalism is what courts do and that originalism always wins out in a clash of interpretive modalities.
Finally, some originalist writings are tinged with nostalgia, reflected in titles like Randy Barnett’s Restoring the Lost Constitution or Robert Bork’s Slouching Towards Gomorrah. Further research into the history of constitutional adjudication in the U.S. may reveal that these authors have mistaken an absence for a loss. If that is the case, we can tell a different narrative of American constitutional history, free from grand metaphors about decline, loss, or judicial usurpation. The alternative narrative track avails itself of a different set of metaphors. It tracks a tradition that follows a varied path, sometimes twisting and turning, sometimes corkscrewing upward or downward, as contested visions of the Constitution play themselves out in the imbricated realms of law and politics.
Jeremy Telman is Director of International Programs & Professor of Law at Valparaiso University Law School. You can reach him by e-mail at jeremy.telman at valpo.edu Posted
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