Living originalism

Duke Law Journal

Volumn 59, Issue 2, 2009, Pages 239-307

  Colby, Thomas B ^a   Smith, Peter J ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 70349804438     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (533)

1. "Originalism" is a murky term, as this Article seeks to explain. But at its core, it treats "the discoverable meaning of the Constitution at the time of its initial adoption as authoritative for purposes of constitutional interpretation in the present."
2. Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL'Y 599, 599 (2004).
3. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 854 (1989).
4. See also Rebecca L. Brown, History for the Non-Originalist, 26 HARV. J.L. & PUB. POL'Y 69, 69 (2003).
5. ("[Non-originalists] have long borne the stigma of identification by negative appellation.")
6. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1126 n.42 (2003).
7. ("Non-originalism seems best defined, derivatively, in contradistinction to originalism.")
8. See William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 694-97 (1976).
9. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3, 38, 41-47 (Amy Gutmann ed., 1998).
10. Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 617 (1999).
11. ("It takes a theory to beat a theory and, after a decade of trying, the opponents of originalism have never congealed around an appealing and practical alternative.")
12. ("I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned.")
13. See, e.g., Edwin Meese III, Toward a Jurisprudence of Original Intent, 11 HARV. J.L. & PUB. POL'Y 5, 11 (1988).
14. (Describing originalism as an "enduring standard")
15. ("The inability of the most brilliant and creative legal minds to present a plausible method of interpretation that engendered enough confidence to warrant overriding the text ... make[s] ... originalism much more attractive.")
16. Raoul Berger, New Theories of "Interpretation" : The Activist Flight from the Constitution, 47 OHIO ST. L.J. 1, 10 (1986).
17. (Quoting Raymond Aron, Pensées, N.Y. TIMES, Oct. 23, 1983, at E19).
18. See also Raoul Berger, Original Intent and Boris Bittker, 66 IND. L.J. 723, 754-55 (1991).
19. (Arguing that a "great merit of originalism" is "that it is a 'simple' concept" and noting that, by contrast, "[n]onoriginalists ... cannot unite on a single alternative but struggle in a welter of theories").
20. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 143 (1990).
21. See also OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, ORIGINAL MEANING JURISPRUDENCE: A SOURCEBOOK 3 (1987).
22. Lino A. Graglia, "Interpreting" the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1020 (1992).
23. Steven G. Calabresi, Op-Ed., The Right Judicial Litmus Test, WALL ST. J., Oct. 1, 2007, at A23.
24. See generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-23 (1962).
25. (Describing the countermajoritarian difficulty).
26. See Barry Friedman, The Turn to History, 72 N.Y.U. L. REV. 928, 943 (1997).
27. (Reviewing LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996))
28. (Noting originalism's promise to solve the countermajoritarian difficulty).
29. (Arguing that the "interpretive project of determining the original public meaning of the Constitution" is "the only truly legitimate approach to the interpretation of the Constitution as a legal document")
30. Gary Lawson, On Reading Recipes ... and Constitutions, 85 GEO. L.J. 1823, 1834 (1997) (emphasis added).
31. Robert H. Bork, Styles in Constitutional Theory, 26 S. TEX. L.J. 383, 387 (1985).
32. See, e.g., Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 CONST. COMMENT. 353, 354 (2007).
33. (Questioning whether "the Constitution and its original principles" are binding)
34. Jed Rubenfeld, The Moment and the Millennium, 66 GEO. WASH. L. REV. 1085, 1105 (1998).
35. ("Constitutionalism cannot survive when squeezed into a jurisprudence of a particular past moment, for it then lacks any account of its own legitimate authority, its own supremacy over the popular will of the present moment.")
36. See generally Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085, 1095-96 (1989).
37. (Explaining that originalism is chiefly criticized for being "too static ... to keep the Constitution up to date with changing times").
38. See, e.g., Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1192-94 (1987).
39. (Presenting a "constructivist coherence theory" of constitutional interpretation).
40. Others have on occasion noted the basic point that, as Christopher Eisgruber once aptly put it, "[o]riginalism comes in a bewildering variety of colors and flavors."
41. CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 26 (2001).
42. See also, e.g., Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1, 9-16 (2009).
43. (Arguing that "literally thousands of discrete theses can plausibly claim to be originalist")
44. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1812 (1996).
45. ("If ever a term muddied as much as it clarified, 'originalism' is it.") But these observations have not been developed as the basis for an independent critique of originalism. Our endeavor here is to develop and illustrate this point in detail, and to derive from it a conclusion that others have missed: that the very existence of this discord substantially undermines the normative claims upon which originalism is typically based.
46. Indeed, the line that separates originalists from nonoriginalists itself is hazy at best. Few nonoriginalists ignore the original meaning.
47. See Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1766 (1997).
48. And plenty of originalists are willing to accept interpretations of the Constitution that depart from the original meaning.
49. See, e.g., Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. 155, 186 (2006).
50. Edwin Meese III, U.S. Attorney Gen., Address Before the D.C. Chapter of the Federalist Society Lawyers Division (Nov. 15, 1985), in OFFICE OF LEGAL POLICY, supra note 11, at 96.
51. Kesavan & Paulsen, supra note 2, at 1132 (emphasis added).
52. For example, Senator Sam Ervin asked Thurgood Marshall in the latter's confirmation hearings, "Is not the role of the Supreme Court simply to ascertain and give effect to the intent of the framers of this Constitution and the people who ratified the Constitution?"
53. (Quoting Nominations of William H. Rehnquist and Lewis F. Powell, Jr.: Hearings Before the S. Comm. on the Judiciary, 92d Cong. 19 (1971).
54. (Statement of Sen. McClellan, Member, S. Comm. on the Judiciary)).
55. Robert H. Bork, The Constitution, Original Intent, and Economic Rights, 23 SAN DIEGO L. REV. 823, 823 (1986).
56. RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 364 (1977).
57. See also, e.g., Earl Maltz, Some New Thoughts on an Old Problem-The Role of the Intent of the Framers in Constitutional Theory, 63 B.U. L. REV. 811, 811-12 (1983).
58. ("[J]udges should be guided by the intent of the Framers of the relevant constitutional provisions.")
59. See, e.g., Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 209-22 (1980).
60. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 907 (1985).
61. Powell's conclusion was that the "original intent" favored by the Framing generation was in fact an inquiry into "the 'intentions' of the sovereign parties to the constitutional compact, as evidenced in the Constitution's language and discerned through structural methods of interpretation; it did not refer to the personal intentions of the framers or of anyone else."
62. As one of us has previously written, This redirected focus on original meaning, rather than original intent, ostensibly avoids both the problem of determining the collective intent of the numerous Framers (the Framers may have had many reasons for enacting it, but the text nonetheless had only one meaning) and the problem of self-defeat (much of the historical evidence that was mustered to undermine the reliance on original intent actually supports the reliance on original meaning by suggesting that the Framers believed that the original meaning of the text, rather than the original intent of the drafters, would control future constitutional interpretation).
63. Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 COLUM. L. REV. 529, 531 (2008) (footnotes omitted).
64. ("The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean.")
65. Lawrence Rosenthal, Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation ... and Parking Tickets, 60 OKLA. L. REV. 1, 3-9 (2007).
66. Vasan Kesavan and Michael Stokes Paulsen tell a detailed and thoughtful tale of the evolution of originalist thought.
67. But they too convey an unduly rosy impression of coherence and continuity
68. See Edwin Meese, III, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. TEX. L. REV. 455, 456 (1986).
69. ("The standard of interpretation applied by the judiciary must focus on the text and the drafter's original intent.").
70. See also, e.g., Earl Maltz, Foreword: The Appeal of Originalism, 1987 UTAH L. REV. 773, 774.
71. (Calling for "a jurisprudence based on the intent of the drafters")
72. ("Effectuation of the draftsman's intention is a long-standing rule of interpretation in the construction of all documents ... .").
73. RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN 3-20 (1987)
74. See Raoul Berger, Jack Rakove's Rendition of Original Meaning, 72 IND. L.J. 619, 640-41 (1997).
75. (Arguing that although the drafters' intentions and understandings are usually dispositive, they are so only when in accord with those of the ratifiers). Bork seems initially not to have taken a stand.
76. (Pressing the necessity of "interpret[ing] the document's words according to the intentions of those who drafted, proposed, and ratified its provisions and its various amendments"). Later, he explained that the focus should be on the "ratifying conventions" because it is "their intent, not the drafters', that counts."
77. Indeed, Justice Black explicitly demanded a jurisprudence of original meaning in 1966. See Harper v. Va. Bd. of Elections, 383 U.S. 663, 677 (1966) (Black, J., dissenting) (lambasting the Court for "consulting its own notions rather than following the original meaning of the Constitution").
78. E.g., Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331, 339 (2004).
79. Steven G. Calabresi, The Originalist and Normative Case Against Judicial Activism: A Reply to Professor Barnett, 103 MICH. L. REV. 1081, 1081 (2005).
80. Michael J. Perry, The Legitimacy of Particular Conceptions of Constitutional Interpretation, 77 VA. L. REV. 669, 675 (1991).
81. See also, e.g., Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 29 (2000).
82. ("What counts as text is the document as understood by the American People who ratified and amended it .... ").
83. KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 60 (1999).
84. (Quoting favorably Jefferson's promise as the president to administer the Constitution "according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption")
85. See, e.g., Steven G. Calabresi, Lawrence, the Fourteenth Amendment, and the Supreme Court's Reliance on Foreign Constitutional Law: An Originalist Reappraisal, 65 OHIO ST. L.J. 1097, 1112 (2004).
86. ("Surely, if that had been the framers' intent, there would have been extended discussion and controversy about the Privileges and Immunities Clause of Article IV during the ratification debates, which there was not.")
87. See, e.g., Earl M. Maltz, Personal Jurisdiction and Constitutional Theory-A Comment on Burnham v. Superior Court, 22 RUTGERS L.J. 689, 696 (1991).
88. (Arguing that originalism "focuses on the original understanding of those who drafted the fourteenth amendment").
89. Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMMENT. 77, 79 (1988).
90. (Discussing "ratifier intent").
91. Ronald D. Rotunda, Original Intent, the View of the Framers, and the Role of the Ratifiers, 41 VAND. L. REV. 507, 512 (1988).
92. (Noting Alexander Hamilton's statements focusing on the ratifiers' intentions).
93. See, e.g., Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH. L. REV. 1127, 1136 (1998).
94. ("Originalism is the idea that the words of the Constitution must be understood as they were understood by the ratifying public at the time of enactment.")
95. ("It is the meaning to, or the understanding of, those, the enfranchised, in whom sovereignty ultimately resides and on whose behalf the ratifiers acted-those the ratifiers 'represented'-that should matter.").
96. See John O. McGinnis & Michael Rappaport, Original Interpretative Principles as the Core of Originalism, 24 CONST. COMMENT. 371, 378-79 (2007).
97. (Arguing in favor of giving very heavy weight to original expected application).
98. See Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 295-97 (2007).
99. This theory is premised not only on the notion that the meaning of a constitutional provision is determined by "the meanings that words had at the time they were adopted" as "read in light of [the provision's] underlying principles," but also on the notion that "the concepts and principles underlying those words must be applied in the same way they would have been applied when they were adopted."
100. ("Scalia's version of 'original meaning' is not original meaning in my sense, but actually a more limited interpretive principle, what I call original expected application.").
101. Mitchell N. Berman, Originalism and Its Discontents (Plus a Thought or Two About Abortion), 24 CONST. COMMENT. 383, 386 (2007).
102. ("[M]uch of Scalia's writing ... does appear to endorse and rely upon the expectation originalism that he purports to reject.").
103. Christopher R. Green, Originalism and the Sense-Reference Distinction, 50 ST. LOUIS U. L.J. 555, 556-58 (2006).
104. (Noting Justice Scalia's suggestion that "in order to maintain a stable constitutional meaning, we must adhere to the Founders' practices" (emphasis omitted)).
105. Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning, 86 GEO. L.J. 569, 574-82 (1998).
106. (Surveying Justice Scalia's opinions involving fidelity to originally expected practices).
107. See infra notes 259-66 and accompanying text.
108. Andrew Koppelman, Phony Originalism and the Establishment Clause, 103 NW. U. L. REV. 727, 737 (2009).
109. ("[L]eading academic defenders of originalism have been disavowing expectation originalism for years.").
110. ("[I]t would be a mistake to assume, as many commentators seem to do, that original expected application is the prevailing academic model of originalism.").
111. Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 FORDHAM L. REV. 1269, 1284 (1997).
112. ("[N]o reputable originalist, with the possible exception of Raoul Berger, takes the view that the Framers' 'assumptions and expectation about the correct application' of their principles is controlling.") In particular, they have disagreed with the assertion that the mere fact that the First Congress engaged in a practice necessarily means that the practice is constitutional.
113. See, e.g., Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 COLUM. L. REV. 1002, 1045 (2007).
114. ("The touchstone must always be the Constitution, not what anyone in particular, including the First Congress, says about the Constitution.")
115. See also, e.g., Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. CIN. L. REV. 7, 23 (2006).
116. (Arguing that "Justice Scalia misunderstands what originalism requires")
117. ("It is not a theory of anyone's intent or intention. Nor is it a theory of anyone-in-particular's understanding. Nor is it a theory of the collective intention of a particular body of people, or of a society as a whole.")
118. Gary Lawson & Guy Seidman, When Did the Constitution Become Law?, 77 NOTRE DAME L. REV. 1, 25 (2001).
119. ("'[O]riginalists' ... maintain that the provisions of the Constitution mean what the Founders intended them to mean-the 'original intention.'").
120. Raoul Berger, Original Intent: The Rage of Hans Baade, 71 N.C. L. REV. 1151, 1159 n.48 (1993).
121. ("Originalists seek the maker's intention." (emphasis omitted)).
122. Edwin Meese III, Reagan's Legal Revolutionary, 3 GREEN BAG 2D 193, 193 (2000)
123. (Noting that originalism involves "a deep-seated commitment to the doctrine of original intent").
124. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 398 (2002).
125. Some of Barnett's work seems to straddle-or not to acknowledge-the line between the actual original public understanding and the hypothetical understanding of an objective observer
126. (Seeking "the objective original meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment").
127. (Arguing that "[t]he public meaning of the words of the Constitution, as understood by the ratifying conventions and the general public ... should prevail").
128. ("That the founders ... drafted texts that leave some discretion in application to changing circumstances is not a bug. It's a feature. Applying the more abstract provisions of a text is required by a proper approach to originalism.").
129. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 253-69 (2004).
130. See infra Part III.C.
131. ("Barnett ... claims that originalism leads to judicial activism. ... [but] Barnett ... has failed in his quest to accurately describe the true original understanding of the Constitution.").
132. Douglas G. Smith, Does the Constitution Embody a "Presumption of Liberty" ?, 2005 U. ILL. L. REV. 319, 321-37.
133. (Criticizing the arguments that Barnett advances in Restoring the Lost Constitution: The Presumption of Liberty).
134. Randy E. Barnett, Trumping Precedent with Original Meaning: Not As Radical As It Sounds, 22 CONST. COMMENT. 257, 264 (2005).
135. Barnett cites Justice Scalia as an example of such an originalist.
136. Michael Stokes Paulsen would be another example.
137. See Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289, 296 n.18 (2005).
138. ("[A] decision invalidating political action where the constitutional text is vague or ambiguous (in the sense of failing to yield a determinate rule of law) is simply an incorrect constitutional decision. Adherence to such a precedent is adherence to a decision that is incorrect on originalist grounds and thus corrupts the interpretive theory of originalism.")
139. MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS: LAW OR POLITICS? 55 (1994).
140. See Richard B. Saphire, Originalism and the Importance of Constitutional Aspirations, 24 HASTINGS CONST. L.Q. 599, 612-21 (1997).
141. ("Perry now argues that originalism and a defense of the modern constitutional jurisprudence of human rights can coexist. ... [A]n originalist can feel free to adopt either [plausible] position.").
142. Bernadette Meyler, Towards a Common Law Originalism, 59 STAN. L. REV. 551, 558 (2006).
143. ("I maintain ... that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text.").
144. Roe v. Wade, 410 U.S. 113 (1973).
145. See also, e.g., Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1371-72 (2009).
146. (Criticizing Balkin's theory and pressing the need "to distinguish genuinely originalist interpretations from those that amount to living constitutionalism ... dressed up in originalist clothing").
147. But see Randy E. Barnett, Underlying Principles, 24 CONST. COMMENT. 405, 416 (2007).
148. (Taking Balkin at his word that "he is sincere in his embrace of original meaning originalism" and expressing a substantial amount of agreement with parts of his theory, while rejecting other parts of it)
149. Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Interpretation," 58 S. CAL. L. REV. 551, 597 (1985).
150. Robert Bennett, Originalist Theories of Constitutional Interpretation, 73 CORNELL L. REV. 355, 355 (1988).
151. Michael Moore, Originalist Theories of Constitutional Interpretation, 73 CORNELL L. REV. 364, 364-66 (1988).
152. Raoul Berger, Originalist Theories of Constitutional Interpretation, 73 CORNELL L. REV. 350, 350 (1988).
153. In so doing, however, McConnell rejected the "original expected application" jurisprudence often employed by Justice Scalia
154. See Michael W. McConnell, On Reading the Constitution, 73 CORNELL L. REV. 359, 361-63 (1987).
155. (Discussing Marsh v. Chambers, 463 U.S. 783 (1983)).
156. But there are still a few.
157. See, e.g., Larry Alexander, Simple-Minded Originalism 1 (Univ. of San Diego Sch. of Law Legal Studies Research Paper Series, Paper No. 08-067, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1235722.
158. ("[G]iven what we accept as legally authoritative, the proper way to interpret the Constitution ... is to seek its authors' intended meanings ... .").
159. ("[T]here does exist a live intramural disagreement among originalists concerning whether to abide by the originally intended meaning of the framers (or ratifiers) of constitutional text or the text's original public meaning.").
160. See Timothy Sandefur, Liberal Originalism: A Past for the Future, 27 HARV. J.L. & PUB. POL'Y 489, 490-91 (2004).
161. (Articulating, based in substantial part on the work of Scott Gerber, a version of originalism that relies on the Declaration of Independence as part of the nation's organic law)
162. See Lawrence B. Solum, Semantic Originalism 2, 28-30 (Ill. Pub. Law & Legal Theory Research Paper Series, Paper No. 07-24, 2008), available at http://ssrn.com/abstract=1120244.
163. (Articulating a version of original-public-meaning originalism that seeks a theoretical foundation in the philosophy of language)
164. ("Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.").
165. According to Paulsen, "[s]tare decisis contradicts the premise of originalism-that it is the original meaning of the words of the text, and not anything else, that controls constitutional interpretation."
166. According to Barnett, a true "originalist simply could not accept that the Supreme Court could change the meaning of the text from what it meant as enacted and still remain an originalist."
167. Michael Stokes Paulsen agrees, calling those who, like Justice Scalia and Judge Bork, would sometimes adulterate originalism with precedent "would-be originalists."
168. (Arguing that "[a]t the time of ratification, judicial power was known to be to some degree confined by an obligation to respect precedent")
169. (Arguing for "a system in which the decisions of the Supreme Court which respect that text and original meaning are given binding effect")
170. See Steven G. Calabresi, Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania v. Casey, 22 CONST. COMMENT. 311, 314, 335-48 (2005).
171. ("My conclusion is therefore that practice has settled the matter such that the Court does have an autonomous, implied power to sometimes follow precedent ... .").
172. See, e.g., Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis, 93 VA. L. REV. 1437, 1441 (2007).
173. ("Preserving legitimacy under popular sovereignty-based originalism ... does not require the complete abandonment of stare decisis.").
174. Lee J. Strang, An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. REV. 419, 419-21 (2006).
175. (Arguing that "limited respect is due some nonoriginalist constitutional precedent because of the larger societal and constitutional goal of effectively pursuing the common good")
176. Polly J. Price, A Constitutional Significance for Precedent: Originalism, Stare Decisis, and Property Rights, 5 AVE MARIA L. REV. 113, 114 (2007).
177. (Noting that "there is strong evidence that the Vesting Clause of Article III implicitly incorporated a principle of stare decisis")
178. Cf. Peter J. Smith, The Marshall Court and the Originalist's Dilemma, 90 MINN. L. REV. 612, 664 (2006).
179. (Arguing that originalists must account for the apparent original understanding that the meaning of ambiguous constitutional provisions would be "fixed" by adjudication)
180. ("What really animates much of the originalist enterprise is not a reasoned conclusion that there is a theory there, but rather a dissatisfaction with what is perceived to be mischievous judicial activism.").
181. Richard H. Fallon, Jr., The Political Function of Originalist Ambiguity, 19 HARV. J.L. & PUB. POL'Y 487, 487, 492 (1996).
182. (Noting that "defenses of originalism, with rare exceptions, leave its nature mushy and confused" and concluding that originalism is in reality "most often a political or rhetorical stalking horse for a set of substantive positions with respect to a relatively narrow set of constitutional issues in the current age")
183. See infra notes 225-310 and accompanying text
184. The term "living constitution" is generally attributed to Thomas Grey, see Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703, 711 (1975).
185. Although it almost certainly has a lengthier pedigree than that, see Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 13-14 (1998).
186. (Discussing the constitutional theories of Sidney George Fisher and Christopher Tiedeman, who "urged the Court to 'recognize the present will of the people as the living source of law' and, 'in construing the law, to follow, and give effect to, the present intentions and meaning of the people'"
187. (Quoting CHRISTOPHER G. TIEDEMAN, THE UNWRITTEN CONSTITUTION OF THE UNITED STATES 154 (Putnam 1978) (1890))).
188. The notion of living constitutionalism is itself a broad tent. The version that we have in mind here is the one articulated by Justice Brennan, the originalists' own boogeyman. Brennan argued: Current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.
189. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. TEX. L. REV. 433, 438 (1986).
190. ("Although alternatives to originalism are surprisingly hard to identify with any specificity, there is one very popular method that can be called the 'underlying principles' approach. We discern from the text the deeper underlying principles that underlie its particular injunctions. We then appeal to these underlying principles to limit the scope of the text or ignore it altogether. Those who employ this approach can claim that they are still enforcing the Constitution, in the sense that they are implementing the principles for which it stands.").
191. (Arguing that "[o]riginalism proper" is the view expressed by the Court in South Carolina v. United States, 199 U.S. 437, 448 (1905), that "[t]he Constitution is a 'written instrument'" whose "meaning does not alter" but instead "means now" what it "meant when adopted").
192. (Arguing that originalists of all stripes agree on the basic thesis that the Constitution's meaning was fixed at the time of origin).
193. ("To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for ... [its] substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances.").
194. See LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 9 (1991).
195. ("[T]he very meaning of the thing we call 'the Constitution' is a reality partly reconstructed by each generation of readers." (emphasis omitted)).
196. ("Successive generations of Americans have continued to respect these fundamental choices and adopt them as their own guide to evaluating quite different historical practices.").
197. ("[H]istory is essential to interpretation of the Constitution, but the relevant history is not just that of the Founding, it is that of all American constitutional history." (emphasis omitted)).
198. Robert M. Shrum, Tribute to Laurence Tribe, 59 N.Y.U. ANN. SURV. AM. L. 11, 12 (2003).
199. (Praising Laurence Tribe for recognizing that "the Constitution is not an historical artifact frozen in amber, but that its words have a living meaning, and that guarantees like 'equal protection' are an ongoing mandate for each generation to widen and realize the ideals of liberty and justice")
200. When one steps back from questions of constitutional interpretation and considers interpretive theories more generally, one finds a familiar pattern of evolution. In the 1970s, when the modern originalist movement began, intentionalism was the prevailing approach to the interpretation of legal texts.
201. See Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 6-23 (2006).
202. It was not until the mid-1980s that textualist approaches to interpretation began their ascendancy.
203. The evolution in originalist thought that we have described here tracks this modern change in interpretive theory.
204. See John Harrison, Forms of Originalism and the Study of History, 26 HARV. J.L. & PUB. POL'Y 83, 83-84 (2003).
205. ("The intuition, that judicial subjectivity was rampant and very bad, got Originalism Mark I going.").
206. ("It is important to note that originalism was a reactive theory motivated by substantive disagreement with the recent and then-current actions of the Warren and Burger Courts; originalism was largely developed as a mode of criticism of those actions.").
207. ("By the late 1980s, Ronald Reagan had significantly changed the complexion of the Court. ... If conservative originalism was to remain relevant when its raison d'etre was gone, then it would have to change form.").
208. ("Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth." (quoting Weems v. United States, 217 U.S. 349, 373 (1910))).
209. ("The primary virtue claimed by the new originalism is one of constitutional fidelity, not of judicial restraint or democratic majoritarianism.") We discuss this point further in note 225, infra.
210. Robert Post and Reva Siegel have also suggested that originalism has a living constitution.
211. See Robert Post & Reva Siegel, Originalism as Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 549-50 (2006).
212. But their metaphor differs from ours. Post and Siegel distinguish the scholarly jurisprudence of originalism from the political practice of originalism. That is to say, although theoretical justifications for originalism focus on its apolitical nature, in practice originalism is used to rally political actors and to champion political outcomes. Thus, as the political commitments of the right change, the practice of originalism changes along with them. Originalists, claim Post and Siegel, selectively ignore or reinterpret the past to serve their evolving political agendas. It is in that sense that Post and Siegel speak of originalism as having its own living constitutionalism.
213. We might nuance this definition, as does Berman, see id. at 22 & n.49, to include originalists who are sometimes willing to afford stare decisis effect to nonoriginalist precedents that they believe to have been wrongly decided.
214. We might also allow some room for "faint-hearted" originalists who are willing to depart from original meaning (or intent or understanding) to avoid profoundly immoral or unpalatable results in a very narrow category of extraordinary cases.
215. ("I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.").
216. Stephen M. Griffin, Rebooting Originalism, 2008 U. ILL. L. REV. 1185, 1187.
217. (Referring to an approach that argues that originalism is "the only (or at least primary) legitimate method of interpretation" (emphasis omitted))
218. Berman refers to these thinkers as "moderate originalists" or "weak originalists."
219. We recognize that not every strong originalist has defended originalism on a ground as aggressive as those described here. Notably, several prominent originalists have recently backed away from the claim that originalism is uniquely able to constrain judges.
220. See, e.g., John Harrison, On the Hypotheses That Lie at the Foundations of Originalism, 31 HARV. J.L. & PUB. POL'Y 473, 473-76 (2008).
221. ("I am deeply skeptical of the capacity of any methodology to constrain any interpreter and thereby to keep Americans from doing what they love to do, which is to find that their Constitution is good, and, therefore, contains what it needs to contain."); infra note 225 and accompanying text.
222. (Noting that in recent originalist writing "there seems to be less emphasis on the capacity of originalism to limit the discretion of the judge" and that new originalists are "unlikely to argue that only originalist methodology can prevent judicial abuses or can eliminate the need for judicial judgment"). Still, in its strong form, originalism is distinct among constitutional interpretive theories for the frequency with which its proponents have argued that it, and it alone, is the only acceptable method for interpreting the Constitution.
223. As Gregory Bassham articulates it, "[Justice] Scalia argues that originalism is superior to all nonoriginalist theories, because there is no agreement, and no prospect of agreement, about which version of nonoriginalism should be adopted in its place. Over the past few decades, a host of nonoriginalist theories have enjoyed their brief day in the sun, but none has been widely accepted. Only originalism, he argues, provides a clear, fixed standard upon which agreement is ultimately possible."
224. Gregory Bassham, Justice Scalia's Equitable Constitution, 33 J.C. & U.L. 143, 149-50 (2006).
225. See also James E. Ryan, Does It Take a Theory? Originalism, Active Liberty, and Minimalism, 58 STAN. L. REV. 1623, 1631 (2006).
226. ("As Scalia observed in his 1989 essay, it is impossible to 'discern any emerging consensus among the nonoriginalists' regarding the appropriate interpretive methodology. This remains true today. By their internal disagreement and their very diversity, nonoriginalists unwittingly bolster the originalists' assertion that nonoriginalists are simply making it up as they go along."
227. Lawrence Solum has suggested that Justice Scalia may not actually be making this argument at all. According to Solum, Scalia might instead simply be making the standard originalist argument that nonoriginalism's flaw lies in the fact that (1) it necessarily relies on moral judgments, and (2) in a pluralist society there is no possibility of consensus on those matters, which (3) will inevitably lead judges to mistake their own views for constitutional mandate.
228. See Lawrence B. Solum, Constitutional Possibilities, 83 IND. L.J. 307, 336 (2008).
229. If Solum is right, then Justice Scalia's language is uncharacteristically inartful here, and we are mistakenly responding to a straw man. But other passages suggest that Scalia does indeed intend to make the argument to which we are responding. Consider the argument that he advanced in his other principal defense of originalism: Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that "You can't beat somebody with nobody." It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote "non-Reagan," it is not very helpful to tell a judge to be a "non-originalist." If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be.
230. In addition, others have read Scalia as we do, and others have separately endorsed the argument that we believe Scalia to be making, see infra notes 140-45, so our response remains useful. In any event, if Solum's reading is correct, then Scalia's argument is still undermined by the diversity of originalist theories for the reasons set out in Part III.C.
231. ("The inability of the most brilliant and creative legal minds to present a plausible method of interpretation that engendered enough confidence to warrant overriding the text ... make[s] ... originalism much more attractive.").
232. Raoul Berger, Response, "Original Intent" : A Response to Hans Baade, 70 TEX. L. REV. 1535, 1549 (1992).
233. ("Even a Justice of the Supreme Court, Antonin Scalia, has entered the lists; after examining the voluminous literature and dwelling on the non-originalists' failure to develop a theory acceptable to their fellows, he opted for originalism as the lesser evil.").
234. ("Justice Scalia considers it a grave defect of the nonoriginalists that they have been unable to agree upon an alternative theory.").
235. John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 NW. U. L. REV. 383, 391 n.36 (2007).
236. (Defending originalism on the ground that "judges of various ideologies cannot be expected to reach agreement on any alternative method")
237. Michael D. Ramsey, Toward a Rule of Law in Foreign Affairs, 106 COLUM. L. REV. 1450, 1474 (2006).
238. (Reviewing JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005))
239. ("Nonoriginalism is, as an initial problem, not a positive constitutional theory: As Justice Scalia colorfully points out, it is united only in agreement that orignalism is not the right approach; it would substitute a bewildering array of proposals, yet agrees upon none. This difficulty is particularly troublesome in foreign affairs law.").
240. ("Almost no one believes that the original understanding is wholly irrelevant to modern-day constitutional interpretation.").
241. James E. Fleming, Response, Original Meaning Without Originalism, 85 GEO. L.J. 1849, 1849 (1997).
242. (Praising Michael Dorf for showing "that one can take original meaning seriously without being a narrow originalist")
243. David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 881 (1996).
244. (Noting that "[v]irtually everyone agrees" that the text and original meaning matter in constitutional interpretation).
245. ("The nature of the non-interpretive enterprise is such that its theories must end in constitutional nihilism and the imposition of the judge's merely personal values on the rest of us. ... Nihilism turns instead to advocacy of opportunistic judicial authoritarianism precisely because what fuels the non-interpretivist impulse in the first place is a desire to change society in ways that legislatures refuse. The desire for results is greater than the respect for process, and, when theory fails, power remains.").
246. Over the years, some commentators have contended that "theoretically, there is no real distinction between originalism and nonoriginalism."
247. Lawrence B. Solum, Originalism as Transformative Politics, 63 TUL. L. REV. 1599, 1602-03 (1989).
248. See also MICHAEL PERRY, MORALITY, POLITICS, AND THE LAW: A BICENTENNIAL ESSAY 279-80 n.7 (1988).
249. ("There is a sense in which we are all originalists: We all believe that constitutional adjudication should be 147
250. (Arguing that "the common law ... provides the best way to understand the practices of American constitutional law").
251. See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
252. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).
253. Compare JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980)
254. Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063 (1980).
255. ("Even though there is no unanimity about what originalism actually means, or what it calls upon judges to do in a close case, its adherents gain a great deal by sharing one name that offers the appearance, if not the reality, of agreement. They also gain the strategic advantage of claiming, by virtue of their name alone, the baseline from which departures must be justified." (footnote omitted)).
256. ("Critics of the Warren Court began to argue that determining the original understanding of the Constitution's framers was the only legitimate way of interpreting the Constitution, and they began to denounce all other approaches to constitutional interpretation as improper and unprincipled." (footnote omitted)).
257. Lillian BeVier calls this the "impersonality" of originalism's decisionmaking criteria, which she argues "invokes all the virtues of objectivity and by implication rejects subjective judging."
258. Lillian R. BeVier, The Integrity and Impersonality of Originalism, 19 HARV. J.L. & PUB. POL'Y 283, 288 (1996).
259. ("When we speak of 'law,' we ordinarily refer to a rule that we have no right to change except through prescribed procedures. That statement assumes that the rule has a meaning independent of our own desires.").
260. ("In substituting a written Constitution and expressly providing for change by amendment, [the Framers] evidenced that they had created a 'fixed' Constitution, subject to change by that process alone.").
261. U.S. CONST. art. VI, cl. 2.
262. (Arguing that the Supremacy Clause mandates textualism as the only legitimate method of interpretation)
263. ("[O]nly a fixed text can be adequately ratified, that is, legislated into fundamental law.").
264. ("Any intelligible view of constitutional adjudication starts from the proposition that the Constitution is law.").
265. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 551 (1994).
266. ("[T]he long-accepted rule for interpreting legal texts is to construe them to have the original public meaning that they had when they were enacted into law.").
267. ("The meaning of all such legal writings depends on their texts, as they were objectively understood by the people who enacted or ratified them.").
268. ("Once we recognize the importance of the Constitution to constitutional law, we must also acknowledge the importance of the Constitution's original meaning to the Constitution.").
269. ("[W]riting, especially legal writing, is a means of transmitting intent. ... It can be certain that the founders did intend to convey meaning in writing the Constitution.").
270. ("Because the Constitution derived its legal authority only when it was ratified at state conventions, judges should take it to mean what it was understood to mean by the ratifiers or ... the people they represented.").
271. ("[I]nterpreting a document means to attempt to discern the intent of the author ... .") Jack Balkin makes a similar argument, albeit in a form probably not recognizable to most originalists and with strikingly different results.
272. "Constitutional interpretation by judges requires fidelity to the Constitution as law. Fidelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.").
273. (Arguing that if we "take interpretation seriously ... we [must] adopt an originalist approach to interpretation.").
274. ("Originalism is less a philosophy than a definition of 'interpretation,' and a plainer, more conventional, or less esoteric definition does not seem possible.").
275. ("Substitution by the Court of its own value choices for those embodied in the Constitution violates the basic principle of government by consent of the governed.")
276. ("The text is not simply a list of words but is the embodied will of the people.")
277. ("The fundamental basis for the authority of originalism is its capacity to retain a space for the popular sovereign.")
278. (Arguing that a well-developed theory of popular sovereignty is an important theoretical basis for originalism)
279. (Noting "the most common and most influential justification for originalism: popular sovereignty and the judicially enforced will of the people"). Other originalists, such as Judge Frank Easterbrook and Randy Barnett, have made similar arguments based more explicitly on contract theory or on the Constitution's "writtenness."
280. See Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1121 (1998).
281. (Arguing that "the Constitution was designed and approved like a contract," and that "contractarian views imply originalist ... interpretation by the judicial branch"). Barnett, who concedes that contracts and Constitutions are different in important ways, also argues that a Constitution's "writtenness," like a contract's, entails a commitment to originalism.
282. ("Short of making the claim of illegitimacy ... we are bound to respect the original meaning of a text, not by the dead hand of the past, but because we today-right here, right now-profess our commitment to this written Constitution, and original meaning interpretation follows inexorably from this commitment.")
283. Barnett disagrees, however, with McConnell's focus on popular sovereignty as a justification for adherence to the Founding generation's Constitution, because "[u]nlike a contract ... a constitution purports to govern even those who did not consent to it at the founding."
284. (Arguing that the legitimacy of the Constitution is not based on a theory of popular sovereignty)
285. See William N. Eskridge, Jr., Lawrence's Jurisprudence of Tolerance: Judicial Review to Lower the Stakes of Identity Politics, 88 MINN. L. REV. 1021, 1043 (2004).
286. (Noting the originalist belief that "[a]lthough such original meaning will sometimes trump the will of current majorities, it is ultimately consistent with democracy because it reflects the will of engaged supermajorities").
287. Bork argues that originalism is "crucial" if we are "to draw a sharp line between judicial power and democratic authority"
288. Because an application of originalism means that "[e]ntire ranges of problems will be placed off-limits to judges, thus preserving democracy in those areas where the Framers intended democratic government"
289. ("[In] its vindication of democracy against unprincipled judicial activism, the philosophy of original understanding does better by far than any other theory of constitutional adjudication can.")
290. (Arguing that originalism supports democratic legitimacy).
291. "If the end is democracy, that end is served when judge-restraining originalism permits the results of the democratic process to stand.")
292. (Arguing that "living constitutionalism ... does not treat the Constitution as binding law").
293. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 10 (1971).
294. ("It is simply not consistent with the idea of the Constitution as binding law to adopt a hermeneutic of textualism that permits individuals to assign their own private, potentially idiosyncratic meanings to the words and phrases of the Constitution.")
295. McConnell also argues that if a text must have determinate meaning to count as law, then nonoriginalism, which is characterized by a lack of objective standards, fails to treat the Constitution as law because embracing nonoriginalism is tantamount to accepting that multiple interpretations of the Constitution might be equally good.
296. ("[W]e lawyers do not have the luxury of stating that multiple interpretations [of the Constitution] are all 'good.'"). This has been a common originalist claim.
297. ("To give the words of the Constitution new meanings over time would deny both the value and risk of a system of written constitutions.").
298. Cf. Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 438 (2007).
299. ("If we do not seek to be faithful to the Constitution, we may be trying to improve the Constitution, but we are not trying to interpret it.")
300. ("[N]on-intepretivism ends in nihilism [because] it has proved wholly unable to meet a condition most theorists have accepted as indispensable-consistency with democratic control of government.")
301. (Arguing that any approach other than originalism leads to the conclusion that the Constitution embodies "principles that the people did not choose," and that "such a holding has no democratic legitimacy")
302. Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Originalism?, 119 HARV. L. REV. 2387, 2387-88 (2006).
303. (Reviewing STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005))
304. Bork argued that if the Supreme Court "does not have and rigorously adhere to a valid and consistent theory of majority and minority freedoms based on the Constitution" -by which he meant originalism-" judicial supremacy, given the axioms of our system, is, precisely to that extent, illegitimate."
305. (Arguing that nonoriginalist approaches "convert the 'chains of the Constitution' to ropes of sand")
306. (Arguing that nonoriginalist approaches mean, "as a practical matter, that the judge is the lawmaker, and such review therefore cannot be legitimate unless the judge is authorized to be the lawmaker" -which, of course, the judge is not).
307. (Arguing that "we lawyers do not have the luxury of stating that multiple interpretations are all 'good'")
308. Saikrishna B. Prakash, Unoriginalism's Law Without Meaning, 15 CONST. COMMENT. 529, 529 (1998).
309. (Reviewing JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION (1996)).
310. ("Originalism's advocates claim that it supplies the one, true interpretive method ... ")
311. See also, e.g., Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631, 632 (1993).
312. (Arguing that nonoriginalists "are not seeking a different means of interpretation-there are no different means-rather, they are seeking to empower the Court to make constitutional law apart from the Constitution").
313. Bruce E. Fein, Comment, Original Intent and the Constitution, 47 MD. L. REV. 196, 197 (1987) (emphasis added).
314. (Delineating the importance of "original intention")
315. (Citing Bork and arguing that uncovering the "public understanding" is "the one, true interpretive method")
316. ("It is legitimate for courts to decide [controversial] issues only when they are enforcing the Constitution as originally understood and ratified by the people.") Calabresi has at other times suggested that original, objective-public-meaning originalism is the only legitimate method of interpreting the Constitution. See infra note 310.
317. It was apparently of no moment that Bork made this assertion not long after insisting that "original intent is the only legitimate basis for constitutional decisionmaking."
318. (Rejecting the use of original intent in favor of discovering an objective original meaning for the purposes of textual analysis).
319. (Arguing that the "interpretive project of determining the original public meaning of the Constitution" is "the only truly legitimate approach to the interpretation of the Constitution as a legal document")
320. Gary Lawson, Everything I Need to Know About Presidents I Learned from Doctor Seuss, 24 HARV. J.L. & PUB. POL'Y 381, 387 n.26 (2001).
321. (Opining that "this particular species of originalism is the correct way to interpret the Constitution")
322. ("[T]he Constitution's meaning is its original public meaning. Other approaches to interpretation are simply wrong.")
323. Raoul Berger, for example, argued not only that original-intent originalism is the only legitimate method of constitutional interpretation, but also that a focus on the objective original public meaning is illegitimate.
324. (Arguing that the "essence of communication" is for "the writer to explain what his words mean; the reader may dispute the proposition, but he may not insist in the face of the writer's own explanation that the writer meant something different"). Michael McConnell, in contrast, has argued not only that original-meaning originalism is the only legitimate approach to constitutional interpretation.
325. But also that original-intent originalism and original-expected-application originalism are illegitimate
326. (Arguing that these approaches are, as represented by the decision in Marsh v. Chambers, 463 U.S. 783 (1983), "subverting the principle of the rule of law"). Vasan Kesavan and Michael Stokes Paulsen have argued not only that the "interpretive project of determining the original public meaning of the Constitution" is "the only truly legitimate approach to the interpretation of the Constitution as a legal document."
327. But also that original-intent originalism and original-understanding originalism are illegitimate
328. Paulsen has gone even further, deriding even other original-meaning originalists-including Justice Scalia and Robert Bork-as "would-be originalists" because they do not subscribe to his particular approach.
329. Randy Barnett similarly has argued not only that original-meaning originalism is the only legitimate method of interpreting the Constitution
330. But also that those self-proclaimed original-meaning originalists (in particular, Justice Scalia) who are willing to follow precedents that are inconsistent with the original meaning, or are unwilling to follow the original meaning of constitutional provisions that are insufficiently rule-like, simply are not originalists, and thus do not follow a legitimate method of constitutional interpretation.
331. And Gary Lawson has argued not only that original, objective-public-meaning originalism is the only legitimate approach to interpreting the Constitution.
332. But also that all "[o]ther approaches to interpretation" -including what he calls "original private meaning" originalism, which is tantamount to an approach that seeks the relevant audience's subjective understanding of the text
333. (Noting that "the claim that semantic content is fixed at the time of origin plays a crucial role in all (or almost all) of the normative justifications for originalism")
334. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
335. (Arguing that "the framers had no intention of striking down segregation")
336. See also Raoul Berger, Activist Indifference to Facts, 61 TENN. L. REV. 9, 20-21 (1993).
337. (Highlighting that the decision to strike down segregation reflected neither original intent nor contemporary political will)
338. Akhil Amar agrees with this reasoning
339. See Akhil Reed Amar, Rethinking Originalism: Original Intent for Liberals (and for Conservatives and Moderates, Too), SLATE, Sept. 21, 2005, http://www.slate.com/id/ 2126680/.
340. ("The difficulty with Bork's principle is that it superimposes his view of 'neutrality' on the Framers' intent. If the concept of the intent of the Framers is to have any coherent meaning, it must include the Framers' idea of what lines can appropriately be drawn.").
341. Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 432 n.25 (1997).
342. ("If achieving 'equality' is the relevant intention, it would be equally originalist to say that the Fourteenth Amendment enacted Marxism, on the theory that equality and capitalism were mutually inconsistent, though the ratifiers did not understand that.").
343. Ronald Turner, Was "Separate but Equal" Constitutional?: Borkian Originalism and Brown, 4 TEMP. POL. & CIV. RTS. L. REV. 229, 262 (1995).
344. (Arguing that if originalists "wish to adhere to the Brown-is-right position, something must give; that something may be a total abandonment of the originalist analysis or a reformulation of originalism that results in a more flexible and broader conception of what originalism entails")
345. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947, 1132-33 (1995).
346. Michael W. McConnell, Segregation and the Original Understanding: A Reply to Professor Maltz, 13 CONST. COMMENT. 233, 233 (1996).
347. (Defending Brown as consistent with the original understanding of the Fourteenth Amendment).
348. See Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373, 1377 (1998).
349. (Stating that Brown "was warranted on textualist/originalist grounds").
350. Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke, 57 ALA. L. REV. 635, 655 n.138 (2006).
351. ("For the record, I am working on an article arguing that Brown was rightly decided based on the correct original understanding of the Fourteenth Amendment."
352. (Citing Steven G. Calabresi & Michael W. Perl, New Originalist Justification of Brown v. Board of Education (unpublished manuscript))).
353. See Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 108-11 (2008).
354. See John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1473-74 (1992).
355. Earl M. Maltz, Originalism and the Desegregation Decisions-A Response to Professor McConnell, 13 CONST. COMMENT. 223, 231 (1996).
356. ("[T]he historical record indicates unambiguously that the Framers of the fourteenth amendment did not intend to outlaw state-imposed segregation per se.").
357. See John Harrison, Equality, Race Discrimination, and the Fourteenth Amendment, 13 CONST. COMMENT. 243, 254-55 (1996).
358. We say "hinted" because Harrison does not directly answer the question. He does suggest, however, that if the Fourteenth Amendment had been ratified in 1954-the year that the Court decided Brown-it would have been far from clear whether, in light of support for Jim Crow laws in a large part of the country, it would have been understood to outlaw segregated schools, and he suggests, somewhat elliptically, that the same was true in 1866.
359. See Margaret Talbot, Supreme Confidence: The Jurisprudence of Justice Antonin Scalia, NEW YORKER, Mar. 28, 2005, at 40, 54.
360. (Describing Justice Scalia's response when asked about Brown's inconsistency with originalism). But see Rutan v. Republican Party of Ill., 497 U.S. 62, 95 n.1 (1990) (Scalia, J., dissenting) (suggesting that segregation was inconsistent with the unambiguous textual meaning of the Equal Protection Clause).
361. It is certainly true that original public meaning, original understanding, original intent, and original expected application often tend to collapse into one another in practice.
362. But they can just as often produce starkly different outcomes, especially when one considers the many subsidiary theories that fall within the original-public-meaning tent.
363. (Arguing that the text and underlying principles of the Fourteenth Amendment's Equal Protection and Privileges or Immunities Clauses support a constitutional right to abortion).
364. (Characterizing judicial protection of unenumerated rights as an illegitmate attempt to bypass the legislative process).
365. Or so say Steven Calabresi and Gary Lawson.
366. (Arguing that the text and structure of Article III establish that all federal judicial power must be subject to the final authority of the Supreme Court).
367. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
368. See Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting) (arguing that "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution").
369. (Arguing that the drafting history "sheds revelatory light on the purpose [and intent] of the Amendment")
370. (Arguing that the majority "gives short shrift to the drafting history of the Second Amendment," and that the majority's sources regarding the public understanding in the era after the Amendment went into effect are not helpful because those authors "appear to have been unfamiliar with the drafting history of the Second Amendment")
371. (Arguing that some of the majority's sources "cannot possibly supply any insight into the intent of the Framers"). Perhaps not surprisingly, self-professed originalist commentators have disagreed about the propriety of the Justices' approaches.
372. ("[T]he Court's reasoning is at critical points so defective-and in some respects so transparently non-originalist-that Heller should be seen as an embarrassment for those who joined the majority opinion.")
373. For the first thirty years of the modern originalist ascendancy, the "primary commitment" of the originalist project was to judicial restraint.
374. Early originalists, after all, offered the approach as an antidote to the perceived judicial excesses of the Warren Court.
375. (Asserting that a focus on the Framers' "original intention" is necessary to prevent "unbounded judicial interpretive discretion")
376. (Explaining that early originalists believed the Warren Court's decisions were a product of the Justices' "own views of desirable results" rather than neutral legal principles). These originalists claimed that originalism would both limit the opportunities of judges to displace the judgment of democratically elected officials.
377. (Asserting that "where the Constitution does not speak," decisional authority is with legislative majorities), and, by narrowing the focus of judicial inquiry to the original meaning of the Constitution (or intent of its Framers), limit the discretion of judges to impose their personal, subjective views of good policy
378. ("Originalism ... establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.") More recently, however, many originalists have tended to downplay the arguments about the dangers of judicial authority, insisting not that judges should "get out of the way of legislatures" but instead simply that judges must "uphold the original Constitution-nothing more, but also nothing less."
379. These new originalists often have argued for more, not less, judicial interference with the work product of democratically elected officials
380. (Arguing for the abandonment of the presumption of constitutionality traditionally afforded to government actions)
381. (Arguing that originalist methodology justifies Roe v. Wade). Still, even if there is disagreement among originalists about the general desirability of judicial invalidation, in the name of the Constitution, of the output of democratic processes, originalists regularly contend that originalism, by limiting the judicial role to a fixed historical baseline, is substantially more likely than other approaches to constrain the ability of judges to impose their views under the guise of constitutional interpretation.
382. ("Many cases will be decided as the lawgivers would have decided them, and, at the very least, judges will confine themselves to the principles the lawgivers intended.").
383. ("[T]he main danger in judicial interpretation ... is that the judges will mistake their own predilections for the law. ... Nonoriginalism ... plays precisely to this weakness. ... Originalism does not ... for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.")
384. Even those originalists who have recognized that claims of originalism's constraining power have often been overstated have tended to view originalism as nonetheless meaningfully, even if not completely, constraining.
385. ("[Originalism] aims not to constrain more, but to constrain better, by focusing judges on America's most attractive legal norms as a matter of prestige and substance.")
386. (Arguing that the Constitution's broader provisions require some judicial discretion, but are constrained by the original public meaning of their terms)
387. Steven D. Smith, Law Without Mind, 88 MICH. L. REV. 104, 106 (1989).
388. Whittington has argued, however, that "[j]udicial restraint is an inadequate basis for justifying an originalist jurisprudence," because "[o]riginalism requires deference only to the Constitution and to the limits of human knowledge, not to contemporary politicians." He also doubts whether originalism can "provide the type of restraints on judicial decision making favored by some of its advocates."
389. Justice Scalia argues that originalism is more likely to create judge-constraining rules rather than standards that confer discretion
390. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1178-80 (1989).
391. (Arguing that the "most common defense of originalism" is that it "generally ties judges to rules")
392. ("[T]he criteria of originalism constrain all the participants in the game-including, most especially, the referees.")
393. ("The only way in which the Constitution can constrain judges is if the judges interpret the document's words according to the intentions of those who drafted, proposed, and ratified its provisions and its various amendments.")
394. ("If the Court may substitute its own meaning for that of the Framers it may ... rewrite the Constitution without limit.")
395. (Arguing that living constitutionalism "simply replaces the written Constitution with the political preferences of contemporary judges")
396. ("[A]ll non-interpretivist theories ... provide no substantive guidance and can easily be manipulated by the very people they purport to constrain, federal judges.")
397. ("In effect, non-interpretivists argue that life-tenured federal judges should have free rein to decide policy issues that affect virtually every aspect of our society, restrained by neither the text of the Constitution nor the electorate.")
398. ("What is wrong with originalism, its opponents believe, what provides the fundamental impetus for their search for alternative, is simply that it leaves too little for courts to do.")
399. (Explaining that historical ambiguities make it difficult to establish a fixed constitutional meaning)
400. ("In the cases in which the fear of judicial discretion is most acute, judges cannot render their decisions on the basis of the original public meaning of the Constitution for the simple reason that there never was such a meaning.").
401. Paul Finkelman, The Constitution and the Intentions of the Framers: The Limits of Historical Analysis, 50 U. PITT. L. REV. 349, 397 (1989).
402. ("Because there were many framers with differing intentions, it is impossible to determine with much specificity what policies and programs were intended by those who made our Constitution in 1787 or remade it in 1865-70.").
403. Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271, 277-82 (2005).
404. (Explaining that originalism is less likely to result in judicial restraint than a system of precedent because originalism provides a smaller body of norms, uses sources that are less accessible, and requires skills that are less compatible with those of a typical judge)
405. Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court's Quest for Original Meaning, 52 UCLA L. REV. 217, 282-86 (2004).
406. ("The fact that the historical record is susceptible to ... conflicting interpretations means that there is significant room for judges to slant the historical record to serve instrumentalist goals.")
407. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 101 (1991).
408. (Arguing that Robert Bork "insists on 100% original understanding, 20% of the time")
409. Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. HAW. L. REV. 385, 385 (2000).
410. ("Justice Scalia's ... jurisprudence of 'original meaning' ... is ... one that Justice Scalia uses selectively when it leads to the conservative results he wants, but ignores when it does not generate the outcomes he desires.").
411. Robert M. Howard & Jeffrey A. Segal, An Original Look at Originalism, 36 LAW & SOC'Y REV. 113, 133 (2002).
412. (Concluding on the basis of an empirical examination of Supreme Court opinions that "Justices might speak about following an 'originalist' jurisprudence, but they only appear to do so when arguments about text and intent coincide with the ideological position that they prefer")
413. Ira C. Lupu, Employment Division v. Smith and the Decline of Supreme Court-Centrism, 1993 BYU L. REV. 259, 260 (1993).
414. ("Justice Scalia, the author of [Employment Division v. Smith, 494 U.S. 872 (1990)], claims to be an originalist. Smith shows no signs, however, of any such orientation; the Court's opinion totally ignores both the text and history of the Free Exercise Clause." (footnote omitted)).
415. Gene R. Nichol, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953, 969-71 (1999).
416. (Arguing that, in cases involving takings, free exercise, standing, and affirmative action, "Justice Scalia departs radically from his chosen theory when it suits his fancy")
417. Eric J. Segall, A Century Lost: The End of the Originalism Debate, 15 CONST. COMMENT. 411, 427-28 (1998).
418. (Noting that Justice Scalia's "votes to overturn flag burning laws, hate speech laws, and affirmative action programs cannot be reconciled with a strictly originalist approach to constitutional interpretation")
419. See, e.g., Suzanna Sherry, The Indeterminacy of Historical Evidence, 19 HARV. J.L. & PUB. POL'Y 437, 437-41 (1996).
420. ("Faced with ... indeterminacies [in historical materials], judges might be tempted-either consciously or subconsciously-to read the history in a manner that advances their own preferences.")
421. ("Since the conclusions of historical scholarship shift over time and since the judges are not constrained by the fact that a conclusion reached by some scholar at some time has since been refuted, the consequence is to expand the field of judicial discretion by presenting judges with a broad menu of possible interpretations, each of which have [sic] sufficient originalist credentials to qualify for citation in the U.S. Reports.")
422. ("[T]he higher the level of generality, the more indeterminate the ... originalist inquiry will be, and thus the less capable orignalism will be of fulfilling its promise to constrain judicial discretion.")
423. He has also sometimes abandoned originalism altogether.
424. The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The Court, however, has concluded that the states are protected from suits in federal court brought by their own citizens seeking to recover on claims arising under federal law, see Hans v. Louisiana, 134 U.S. 1 (1890), and, more recently, that states are even immune from private suits filed in state court, see Alden v. Maine, 527 U.S. 706 (1999).
425. See generally John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 YALE L.J. 1663 (2004).
426. Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 HARV. L. REV. 1342 (1989).
427. See, e.g., Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit upon the States, 126 U. PA. L. REV. 1203, 1279-80 (1978).
428. (Explaining that, as indicated by historical materials, sovereign immunity survived as a common law doctrine but could be legislatively abrogated)
429. William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033, 1130 (1983).
430. ("[T]he adopters of the amendment originally had the more modest purpose of requiring that the state-citizen diversity clause of article III be construed to confer jurisdiction on the federal courts only when a state sued an out-of-state citizen.").
431. John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889, 2004 (1983).
432. ("Neither federal question cases nor admiralty cases fit within [the Amendment's] language, within the intention of its framers, or within the interpretation that the Court consistently gave it prior to the constitutional crisis of 1877.").
433. Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1, 55 (1988).
434. ("[T]he historic purpose of the Eleventh Amendment ... suggests that the primary objective of the ... Amendment was to ensure that the Constitution not be construed to permit an adjudication against a state, where suit was (1) based only on liabilities arising under state law, and (2) brought originally in a federal forum whose jurisdiction was not subject to legislative change or direction.")
435. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 31 (1989) (Scalia, J., concurring in part and dissenting in part).
436. See also, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008) (Scalia, J.) ("In interpreting this text, we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation." (quoting United States v. Sprague, 282 U.S. 716, 731 (1931))).
437. See, e.g., Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 484 (2002).
438. ("[T]he Court's sovereign immunity decisions are part of a broader agenda for the protection of a conservative vision of constitutional federalism.").
439. Michael E. Solimine, Formalism, Pragmatism, and the Conservative Critique of the Eleventh Amendment, 101 MICH. L. REV. 1463, 1464 (2003).
440. ("[M]any conservatives cheer on-or do not criticize-the Rehnquist Court's Eleventh Amendment jurisprudence, perhaps because it resonates with a pro-federalism policy agenda.")
441. Printz v. United States, 521 U.S. 898 (1997).
442. For additional examples, see Melvyn R. Durchslag, The Supreme Court and the Federalist Papers: Is There Less Here than Meets the Eye?, 14 WM. & MARY BILL RTS. J. 243, 298 (2005).
443. One such case is United States v. Hatter, 532 U.S. 557 (2001), in which Justice Scalia cited The Federalist to determine what "the Framers ... had ... in mind" and what they "believed" about the meaning of the Constitution.
444. (Scalia, J., concurring in part and dissenting in part).
445. Printz, 521 U.S. at 905.
446. See William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1307 (1998).
447. Printz, 521 U.S. at 905.
448. ("To determine the historical understanding and practice, Scalia relied strongly on The Federalist.")
449. William Eskridge explains that Justice Scalia was using The Federalist to establish that the Constitution "as specifically understood by at least one framer" dictated the Court's conclusion
450. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-34 (2001) ("It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."); Minnesota v. Dickerson, 508 U.S. 366, 379, 382 (1993) (Scalia, J., concurring) ("[E]ven if a 'frisk' prior to arrest would have been considered impermissible in 1791, perhaps ... it is only since that time that concealed weapons capable of harming the interrogator quickly and from beyond arm's reach have become common-which might alter the judgment of what is 'reasonable' under the original standard.").
451. ("[I]t is entirely clear that capital punishment, which was widely in use in 1791, does not violate the abstract moral principle of the Eighth Amendment.").
452. See also Aileen Kavanagh, Original Intention, Enacted Text, and Constitutional Interpretation, 47 AM. J. JURIS. 255, 279-82, 296-97 (2002).
453. See McCreary County v. ACLU, 545 U.S. 844, 885-905 (2005) (Scalia, J., dissenting).
454. See Printz v. United States, 521 U.S. 898, 905-10 (1997).
455. See Thomas B. Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 NW. U. L. REV. 1097, 1132-38 (2006).
456. (Arguing that it is virtually impossible to articulate an original objective meaning of the Establishment Clause that would account for Justice Scalia's theory of the extent of the government's power to endorse religion-a theory that is based entirely on his understanding of the expectations of the Framing generation and that eschews any effort to articulate the original meaning of the Clause).
457. (Arguing that Scalia's originalism "does not attempt to state the principle for which the disputed constitutional provision stands")
458. (Arguing that originalism is "less likely to aggravate the most significant weakness of the system of judicial review and more likely to produce results acceptable to all")
459. (Asserting that "original intent is the only legitimate basis for constitutional decisionmaking" (emphasis added))
460. (Asserting that "only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy" (emphasis added)). Bork claimed that his endorsement of original understanding was simply a clarification of his earlier work.
461. James Boyle, A Process of Denial: Bork and Post-Modern Conservatism, 3 YALE J.L. & HUMAN. 263, 283-90 (1991).
462. Griswold v. Connecticut, 381 U.S. 479 (1965).
463. Cf. Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold and the Philosophy of Original Understanding, 24 GA. L. REV. 1045, 1082-85 (1990).
464. (Arguing that Bork's demand for such specificity for the right to privacy is actually inconsistent with the originalist methodology that he outlines in his book)
465. See JOHN HART ELY, DEMOCRACY AND DISTRUST 22-30, 34-41 (1980)
466. See Dronenburg v. Zech, 741 F.2d 1388, 1391-97 & n.5 (D.C. Cir. 1984).
467. (Rejecting unenumerated rights because they are not specifically listed in the text of the Constitution).
468. Cf. Robert H. Bork, Commentary, The Impossibility of Finding Welfare Rights in the Constitution, 1979 WASH. U. L.Q. 695, 695-97.
469. ("I represent that school of thought which insists that the judiciary invalidate the work of the political branches only in accordance with an inference whose underlying premise is fairly discoverable in the Constitution itself.").
470. ("[Although] the men who put the amendment in the Constitution intended that the Supreme Court should secure against government action some large measure of racial equality. ... those same men were not agreed about what the concept of racial equality requires.")
471. Because Brown occupies a position at the center of the untouchable canon of constitutional law.
472. See, e.g., Jack M. Balkin, "Wrong the Day It Was Decided" : Lochner and Constitutional Historicism, 85 B.U. L. REV. 677, 681-82 (2005).
473. As a practical matter, "[n]o constitutional theory is taken seriously unless it can accommodate the result in Brown." .
474. Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 488 (2005).
475. See also, e.g., Cass R. Sunstein, In Defense of Liberal Education, 43 J. LEGAL EDUC. 22, 26 (1993).
476. (Arguing that "an approach to constitutional interpretation is unacceptable if it entails the incorrectness of Brown")
477. ("Brown has become the high ground of constitutional theory. Theorists of all persuasions seek to capture it, because any theory that seeks acceptance must, as a matter of psychological fact, if not logical necessity, account for the result in Brown.")
478. ("The supposed inconsistency between Brown and the original meaning of the Fourteenth Amendment has assumed enormous importance in modern debate over constitutional theory. Such is the moral authority of Brown that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited.")
479. See David A.J. Richards, Originalism Without Foundations, 65 N.Y.U. L. REV. 1373, 1381-82 (1990).
480. (Arguing that Bork's high-level-of-generality analysis of Brown is inconsistent with the very originalist methodology that he otherwise advocates).
481. See Cass R. Sunstein, Five Theses on Originalism, 19 HARV. J.L. & PUB. POL'Y 311, 312 (1995).
482. Sunstein calls this approach "hard originalism."
483. ("[T]he question-even in Bork's formulation-is not how the Framers themselves would have decided such a question; Bork's theory is more sophisticated than that. Rather, the question is what principles we can draw from the Framers' understanding of what the Constitution was about so as to decide for ourselves whether the Constitution permits bans on contraception.")
484. Sunstein calls this form of originalism "soft originalism."
485. (Arguing that it is possible to reconcile the result in Brown with the Framers' original understanding that segregation was not objectionable)
486. See, e.g., Ollman v. Evans, 750 F.2d 970, 996 (D.C. Cir. 1984) (en banc) (Bork, J., concurring) ("We know very little of the precise intentions of the framers and ratifiers of the speech and press clauses of the first amendment. But we do know that they gave into our keeping the value of preserving free expression and, in particular, the preservation of political expression, which is commonly conceded to be the value at the core of those clauses. Perhaps the framers did not envision libel actions as a major threat to that freedom. ... But if, over time, the libel action becomes a threat to the central meaning of the first amendment, why should not judges adapt their doctrines?").
487. (Noting that Bork's Ollman opinion employs a sort of "purposivism" -originalism that "tak[es] as normative the original purpose" of the First Amendment)
488. See, e.g., Davis v. Washington, 547 U.S. 813, 836 (2006) (Thomas, J., concurring in the judgment in part and dissenting in part) (noting that "it is unlikely that the Framers intended the word 'witness' to be read so broadly as to include such statements"); Hamdi v. Rumsfeld, 542 U.S. 507, 580 (2004) (Thomas, J., dissenting) ("The Founders intended that the President have primary responsibility-along with the necessary power-to protect the national security and to conduct the Nation's foreign relations."); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 898 n.22 (1995) (Thomas, J., dissenting) (asking "whether the Framers intended to preclude the people of each State from supplementing the constitutional qualifications").
489. See, e.g., Rothgery v. Gillespie County, 128 S. Ct. 2578, 2595 (2008) (Thomas, J., dissenting) (rejecting the majority's holding because it "is not supported by the original meaning of the Sixth Amendment"); Apprendi v. New Jersey, 530 U.S. 466, 518 (2000) (Thomas, J., concurring) (seeking "the original meaning of the Fifth and Sixth Amendments").
490. See, e.g., Kelo v. City of New London, 545 U.S. 469, 506 (2005) (Thomas, J., dissenting) ("Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them." (emphases added)); Utah v. Evans, 536 U.S. 452, 490-91 (2002) (Thomas, J., concurring in part and dissenting in part) (equating original meaning with original understanding); see also Baze v. Rees, 128 S. Ct. 1520, 1556 (2008) (Thomas, J., concurring in the judgment) (rejecting the majority's holding because it "finds no support in the original understanding of the Cruel and Unusual Punishments Clause"); Morse v. Frederick, 551 U.S. 393, 420 (2007) (Thomas, J., concurring) ("The Tinker Court made little attempt to ground its holding in ... the original understanding of the First Amendment."); Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring in the judgment) (noting that neither party argued whether "our substantive due process cases were wrongly decided and ... [whether] the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights"); United States v. Morrison, 529 U.S. 598, 627 (2000) (Thomas, J., concurring) ("Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.").
491. Clarence Thomas, Judging, 45 U. KAN. L. REV. 1, 6 (1996).
492. (Arguing that "when interpreting the Constitution, judges should seek the original understanding of the provision's text")
493. See, e.g., Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) ("[O]ur task would be far simpler if we returned to the original meaning of the word 'establishment' than it is under the various approaches this Court now uses. The Framers understood an establishment necessarily [to] involve actual legal coercion." (internal quotation marks omitted)); Saenz v. Roe, 526 U.S. 489, 528 (1999) (Thomas, J., dissenting) ("[W]e should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant.").
494. See, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 380 (2006) (Thomas, J., dissenting) ("The Framers understood [that] '[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'" (quoting Hans v. Louisiana, 134 U.S. 1, 13 (1890))).
495. (Noting that the "practice of the early Congresses can provide valuable insight into the Framers' understanding of the Constitution"); Whitman v. Am. Trucking Ass'ns., 531 U.S. 457, 487 (2001) (Thomas, J., concurring) ("I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.")
496. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
497. (Thomas, J., concurring in the judgment) (emphasis added) (citations omitted) (quoting South Carolina v. United States, 199 U.S. 437, 448 (1905); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838)).
498. See, e.g., Rothgery v. Gillespie, 128 S. Ct. 2578, 2596 (2008) (Thomas, J., dissenting) (relying on Blackstone); Baze, 128 S. Ct. at 1556 (Thomas, J., concurring in the judgment) (relying on "the historical practices that led the Framers to include [the Cruel and Unusual Punishments Clause] in the Bill of Rights"). This evidence is of greater import to versions of originalism that seek the underlying purpose than to those that seek the objective textual meaning.
499. See, e.g., Saenz, 526 U.S. at 526 (Thomas, J., dissenting) (citing congressional debates over the Fourteenth Amendment); U.S. Term Limits v. Thornton, 514 U.S. 779, 876-77 (1995) (Thomas, J., dissenting) (citing cases that rely on drafting debates from the Constitutional Convention). This body of evidence is, of course, of central import to those who seek the original intent of the Framers.
500. Proponents of the original-understanding version of originalism, by contrast, typically argue that it is inappropriate (and perhaps even illegitimate) to consider evidence from the Constitutional Convention in 1787 in seeking to discern the original understanding. Steven Calabresi and Saikrishna Prakash, for example, have argued that the original understanding approach's focus on the ratifiers' understanding of the text forecloses reference to a drafting history that had not been disclosed at the time of the ratification conventions, and thus was unknown to the ratifiers.
501. ("Since originalists maintain that it is the meaning of the text to the ratifiers that counts, they should give little weight to an antitextual argument derived from legislative history.").
502. Steven G. Calabresi, The Political Question of Presidential Succession, 48 STAN. L. REV. 155, 161 n.37 (1995).
503. ("There are very serious reasons to question whether any weight at all should be given ... to Madison's secret legislative history from Philadelphia ... .") But, as Kesavan and Paulsen have explained, this evidence is often quite persuasive for original-public-meaning textualists, because, among other things, it can help to illustrate the way in which "informed eighteenth-century Americans understood and used the language of the Constitution.".
504. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 580-81 (2004) (Thomas, J., dissenting) (relying on The Federalist to articulate the actual intentions and understandings of the Framers); U.S. Term Limits, 514 U.S. at 863 (Thomas, J., dissenting) (citing a speech made by John Jay at the New York ratifying convention). This evidence is more important to original understanding than it is to original intent or original objective textual meaning.
505. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 502-03 (2000) (Thomas, J., concurring) (relying on cases decided shortly after the Framing). This evidence is of greatest value in the search for original expected application.
506. See, e.g., Utah v. Evans, 536 U.S. 452, 492 (2002) (Thomas, J., concurring in part and dissenting in part) (relying on several dictionary definitions for support). Dictionaries are the bread and butter of original public meaning textualism.
507. ("[It] can be very disappointing for critics of originalism-and especially for historians-when they read original meaning analysis. They expect to see a richly detailed legislative history only to find references to dictionaries ... .")
508. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 360 (1995) (Thomas, J., concurring in the judgment) ("Unfortunately, we have no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must focus on the practices and beliefs held by the Founders concerning anonymous political articles and pamphlets.")
509. SCOTT DOUGLAS GERBER, FIRST PRINCIPLES: THE JURISPRUDENCE OF CLARENCE THOMAS 193 (1999)
510. (Citing Adarand Construction, Inc. v. Peña, 515 U.S. 200 (1995), as an example of Justice Thomas's position on affirmative action, and Justice Thomas's comments about Brown v. Board of Education, 347 U.S. 483 (1953), as an example of his position on segregation).
511. Book Note, Justice Thomas's Inconsistent Originalism, 121 HARV. L. REV. 1431, 1435-36 (2008).
512. (citing Grutter v. Bollinger, 539 U.S. 306 (2003)).
513. See Michael J. Klarman, Response, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881, 1884-914 (1995).
514. (Arguing that the original understanding of the Fourteenth Amendment did not invalidate segregation).
515. (Arguing that race-conscious Reconstruction programs show that the framers of the Fourteenth Amendment did not understand it to preclude affirmative action).
516. Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753, 754-83 (1985) (same).
517. (Citing Rosenberger v. University of Virginia, 515 U.S. 819 (1995), as an example of Justice Thomas's position on the Establishment Clause).
518. (Citing Stenberg v. Carhart, 530 U.S. 914 (2000), as an example of Justice Thomas's position on abortion).
519. See generally CLARENCE THOMAS, MY GRANDFATHER'S SON: A MEMOIR (2007)
520. (Describing the role of race in his life)
521. (Arguing that "this framework appears results-driven, a sort of racial exception to his generally conservative originalism, seeming to reflect little more than Justice Thomas's policy preferences and his desire to remain true to his view of racial equality")
522. Lewis v. Casey, 518 U.S. 343, 367 (1996) (Thomas, J., concurring).
523. Our focus here is on judges, because it is their actions that originalists claim their approach can constrain. It is worth noting, however, that even academic originalists-who have the luxury of opining in the abstract, without having to issue opinions with the force of law-have not always escaped the charge of employing inconsistent versions of originalism. For instance, Randy Barnett, who is a political libertarian, has claimed that originalism essentially yields the conclusion that the Constitution is a libertarian charter.
524. But, according to Steven Calabresi, he does so only by selectively varying the version of originalism that he employs in interpreting different constitutional provisions.
525. (Arguing that Barnett arrives at his libertarian originalism only by inconsistently employing a low-level-of-generality version of originalism in interpreting constitutional provisions granting powers to the federal government, and a high-level-of-generality originalism in interpreting constitutional provisions affording rights to individuals). Ironically (and perhaps tellingly), Calabresi himself has been criticized by other originalists for being imprecise and inconsistent in his articulation and application of originalism.
526. (Noting that Calabresi and his coauthor Saikrishna Prakash are sometimes "a bit more imprecise in their description of originalism," insofar as they claim at different points in the same article to seek both the objective understanding of a hypothetical ratifier and the actual understandings of the actual ratifiers).
527. (Employing an "originalist methodology that looks to the objective meaning of the Constitution that would have been held by a hypothetical reasonable observer in 1788").
528. ("[W]hat really matters in constitutional interpretation is ... what the original language actually meant to those who used the terms in question." (emphasis added)).
529. See Lawrence B. Solum, Colby and Smith on Originalism (and a Comment About the Meaning of Originalism), LEGAL THEORY BLOG, Feb. 15, 2008, http://lsolum.typepad. com/legaltheory/2008/02/thomas-colby-an.html.
530. (Arguing that there is a core of originalist beliefs that tie all versions of originalism together).
531. Lawrence B. Solum, Incorporation and Originalist Theory 1 (Ill. Pub. Law and Legal Theory Research Paper Series, Paper No. 08-16, 2009), available at http://ssrn.com/abstract=1346453.
532. ("Originalism is best viewed as a family of theories that characteristically affirm ... [t]he Fixation Thesis ... [and] [t]he Contribution Thesis ... .")
533. ("[O]riginalism as a theory of constitutional interpretation is still trying to work itself pure-and it is not there yet.")