Profiling originalism

Columbia Law Review

Volumn 111, Issue 2, 2011, Pages 356-418

  Greene, Jamal ^a   Persily, Nathaniel ^a   Ansolabehere, Stephen ^b  

^a Columbia Law School ^*

^b HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79953885789     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (256)

1. See Amy Gardner, Tea Party Faces Challenge of No Leader, Single Goal, Wash. Post, Sept. 22, 2010, at A02 (discussing row over cancellation of convention planned by Tea Party Nation).
2. Tea Party Nation, at http://www.teapartynation.com (on file with the Columbia Law Review) (last visited Oct. 17, 2010).
3. Tea Party Patriots, Mission Statement and Core Values, at http://www.teapartypatriots.org/Mission.aspx (on file with the Columbia Law Review) (last visited Oct. 17, 2010).
4. See Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 9 The Works of Thomas Jefferson 193, 195 (Paul Leicester Ford ed., 1905) ("We are all republicans: we are all federalists.").
5. See Michael J. Perry, Morality, Politics and Law 280 (1988) [hereinafter Perry, Morality] ("There is a sense in which we are all originalists: We all believe that constitutional adjudication should be grounded in the origin-the text that is at our origin and, indeed, is our origin.").
6. See Michael J. Perry, The Legitimacy of Particular Conceptions of Constitutional Interpretation, 77 Va. L. Rev. 669, 694 (1991) ("The more specific the original meaning, the greater the constraint; the more general the meaning, the lesser the constraint and the greater the latitude for what is sometimes called judicial 'discretion' in 'applying' the provision to the case at hand.").
7. See Perry, Morality, supra note 7, at 280 ("But there is a sense, too, in which none of us is an originalist [W]e cannot travel back to the origin, no matter how hard we try, and we deceive ourselves if we think we can.").
8. See District of Columbia v. Heller, 128 S. Ct. 2783, 2790 & n.6 (2008) (examining text of Constitution and "other founding-era documents" to determine scope of Second Amendment right).
9. See id. at 2831-36 (Stevens, J., dissenting) (reviewing text and constitutional drafting history of Second Amendment).
10. See Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 672-96 (2009) [hereinafter Greene, Selling Originalism] (describing integration of social and political movement behind originalism into professional discourse)
11. Kate Zernike, Beyond New Deal, N.Y. Times, July 3, 2010, at A9 ("When Republicans pressed [Elena] Kagan on the Constitution's commerce clause and whether she was a legal progressive, they were speaking not just about academic abstractions, but about the very ideas that animate the. [Tea Party] movement.").
12. For a discussion of originalism in bestselling books, blogs, popular speeches, and newspaper editorials, see Zernike, supra note 12. 14.
13. Jill Lepore, Tea and Sympathy: Who Owns the American Revolution?, New Yorker, May 3, 2010, at 26, 31.
14. See Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Originalism?, 119 Harv. L. Rev. 2387, 2415 (2006) (reviewing Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005)) ("The point is that in principle the textualist-originalist approach supplies an objective basis for judgment that does not merely reflect the judge's own ideological stance.")
15. 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: Federal Courts and the Law 3, 39 (Amy Gutmann ed., 1997) [hereinafter Scalia, Common-Law Courts] (arguing nonoriginalist judges typically interpret the Constitution according to what they believe it "ought to mean").
16. See, e.g., Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 241 (2008) (arguing "[t]he New Right embraced originalism as the jurisprudential vehicle" for its conservative political claims).
17. See Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291, 1294-95 (2003) (arguing cultural disposition rather than objective evaluation of empirical evidence explains views on gun rights).
18. Press Release, Quinnipiac Univ., Obama's Bounce Goes Flat, Quinnipiac University National Poll Finds; but Voters Confident He Will Pick Good Judge (Apr. 21, 2010); Press Release, Quinnipiac Univ., American Voters Oppose Same-Sex Marriage Quinnipiac University National Poll Finds, but They Don't Want Government to Ban It (July 17, 2008); Press Release, Quinnipiac Univ., Voters Back Supreme Court Limit on School Deseg[regation] 3-1 Quinnipiac University National Poll Finds; Approval of Congress Drops to Lowest Point Ever (Aug. 16, 2007); Press Release, Quinnipiac Univ., Supreme Court Nominee Should Speak Up on Abortion, U.S. Voters Tell Quinnipiac University National Poll; Bush Approval Drops to New Low (July 27, 2005); Press Release, Quinnipiac Univ., U.S. Voters Back Roe v. Wade 2-1, Support Filibusters, Quinnipiac University National Poll Finds; Bush Approval at Lowest Point Ever (May 25, 2005); Press Release, Quinnipiac Univ., Supreme Court Should Listen to the People, Americans Tell Quinnipiac University Poll; 2-1 Are Opposed to Race-Based College Admissions (Mar. 5, 2003) [hereinafter Quinnipiac Surveys] (all on file with the Columbia Law Review).
19. Stephen Ansolabehere, Guide to the 2008 Cooperative Congressional Election Survey (2009) [hereinafter CCES] (on file with the Columbia Law Review).
20. Stephen Ansolabehere & Nathaniel Persily, Knowledge Networks, Field Report: Constitutional Attitudes Survey (2010) [hereinafter Constitutional Attitudes Survey] (on file with the Columbia Law Review).
21. See, e.g., Erwin Chemerinsky, Seeing the Emperor's Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. Rev. 1069, 1073 (2006) (remarking that Justice Scalia and Justice Thomas, the Court's two most originalist Justices, appear to "see a great parallel between the 'originalist' Constitution and the 2004 Republican Party platform")
22. John O. McGinnis & Michael B. Rappaport, Supermajority Rules and the Judicial Confirmation Process, 26 Cardozo L. Rev. 543, 554 (2005) ("[O]ur parties now seem to be divided on originalism, with the Republican Party much more sympathetic to originalism and the Democratic Party opposed.").
23. See generally Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009) [hereinafter Friedman, Will of the People] (arguing Supreme Court generally follows public opinion)
24. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004) (advocating revival of constitutional interpretation by the American people rather than by judges)
25. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007) [hereinafter Post & Siegel, Roe Rage] (defending model of "democratic constitutionalism" that accords prominent role for citizens to engage with courts on constitutional interpretation through dialectic process).
26. Compare Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287, 1304 (2004) ("Decades of research on political knowledge have uniformly showed it to be very low.")
27. James L. Gibson & Gregory A. Caldeira, Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People 17 (2009) ("Even though widely accepted, the image of the American people as ignorant about courts rests upon a remarkably thin layer of empirical evidence.").
28. The Quinnipiac results are based on telephone interviews conducted in February and March 2003, May 2005, July 2005, August 2007, July 2008, and April 2010. The surveys conducted in 2005, 2007, 2008, and 2010 polled a national sample of registered voters or likely voters, with sample sizes ranging from 920 to 1,930; the 2003 survey polled a national sample of 1,448 adults.
29. Quinnipiac Surveys, supra note 18. 25. The CCES is a national survey commissioned by thirty research teams from more than thirty universities and coordinated through the Massachusetts Institute of Technology political science department. The 2008 CCES was conducted over the Internet by the polling firm YouGov/Polimetrix, and the panel including the originalism question was part of a 2,000-person national panel. The CCES was in the field in two waves in October and November of 2008.
30. CCES, supra note 19, at 1-2, 9.
31. The Constitutional Attitudes Survey was conducted in 2009 and 2010 by Knowledge Networks, which derives its sample from telephone- and address-based polls and then conducts the survey through the Internet (providing internet access to those who otherwise do not have it). Constitutional Attitudes Survey, supra note 20, at 8-11. The 2009 CAS used a national sample of 1,677 adults.
32. Id. at 4-5. It was in the field from July 6, 2009 to July 13, 2009, concluding just as the Senate Judiciary Committee hearings commenced on the nomination of Justice Sonia Sotomayor.
33. Stephen Ansolabehere, Knowledge Networks, Field Report: Attitudes & Perceptions About the Constitution 4 (2009) (on file with the Columbia Law Review). The 2010 CAS reinterviewed 1,027 of the respondents from the 2009 CAS, beginning on June 16, 2010 and concluding on July 6, 2010.
34. Constitutional Attitudes Survey, supra note 20, at 4-5.
35. The survey period, therefore, included both the last few days of the Supreme Court's term, when it issued several salient decisions, and a few days of the Senate Judiciary Committee's confirmation hearings for Justice Elena Kagan.
36. Quinnipiac Surveys, supra note 18, at Questions 31 (2010 survey), 23 (2008 survey), 36 (2007 survey), 8 (July 2005 survey), 10 (May 2005 survey), 22 (2003 survey).
37. Close watchers of the academic debate around originalism will immediately notice at least three potential problems with the phrasing of this question. First, the "original intentions" option is phrased as a binary question, whereas the "changing times" option is not. That is, this question allows a respondent to be coded as "originalist" only if she believes that the Court should take "only" the original intentions of the Framers into account. A respondent who believes that "changing times and current realities" are relevant, but that the original intentions of the Framers should predominate, would conventionally be considered an originalist, but might not be identified as such by this question. Responses to the question may therefore overrepresent nonoriginalists. Less obviously, a sophisticated view on constitutional interpretation need not regard the two options as mutually exclusive. One might reasonably believe that the original intentions of the authors of relevant constitutional provisions were that the text be applied in light of "changing times and current realities."
38. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) ("[W]e must never forget that it is a constitution we are expounding.")
39. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 902-13 (1985) (arguing that authors of Constitution did not believe their own subjective intentions would bind future generations)
40. see also Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 61-65 (1955) (suggesting even if Fourteenth Amendment was not originally understood to prohibit racial segregation, its language was deliberately broad enough to allow for different future interpretations).
41. But see Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 Mich. L. Rev. 239, 242 (1989) ("In general, neither Federalists nor Anti-Federalists thought it appropriate for constitutional law to change in adaptation to social developments.").
42. The third potential problem with the question is that it refers to the original intentions of the authors of the Constitution rather than the original meaning of the constitutional text. As is well known among constitutional theorists, most academic originalists and many judges, including Justice Antonin Scalia, prefer the latter formulation.
43. See Antonin Scalia, Response, in A Matter of Interpretation, supra note 15, at 129, 144-47 (stating focus should be "upon what the text would reasonably be understood to mean, rather than upon what it was intended to mean")
44. see also Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611, 620 (1999) (noting conceptual change in originalism "from original intention to original meaning").
45. Throughout this Essay in Tables 1-3 and 5-7 and accompanying text, any totals not equal to 100% are due to rounding.
46. We do not know for sure why such a great discrepancy exists between the 2010 Quinnipiac and 2010 CAS surveys, despite being separated by only two months. Both surveys are outliers, but in opposite directions. Judging from responses to other questions on those surveys, it appears that the CAS sample had a somewhat more favorable view of Obama than did the Quinnipiac sample. However, that would not account for the size of the discrepancy. It is also possible that some salient Supreme Court decisions issued toward the end of the Court's term and intervening between the surveys had some effect picked up by the CAS but not the Quinnipiac survey. Or perhaps the announcement of Justice Elena Kagan's nomination to the Court had some effect. It also appears that the Quinnipiac survey asked a number of questions about President Obama's approval just before asking about originalism, and these questions could have had a priming effect. Although we view this discrepancy as cause for concern in the precision of our estimates of the current share of the public that supports originalism, we do not think it casts doubt on our profile of originalists or the variables that we think predict originalist attitudes. Nevertheless, potential instability in responses to the Quinnipiac question further justifies the approach we take here-that is, to create an index of originalism derived from several questions rather than just one.
47. See Constitutional Attitudes Survey, supra note 20, Question 503a (2010), at 35, 106.
48. Quinnipiac Survey, supra note 18, Question 31 (2010 survey).
49. See Constitutional Attitudes Survey, supra note 20, Question 101 (2009), at 20, 51.
50. See CCES, supra note 19, Question V3081 (2008) (unpublished codebook).
51. Quinnipiac Survey, supra note 18, Question 23 (2008 survey).
52. Quinnipiac Survey, supra note 18, Question 36 (2007 survey).
53. Quinnipiac Survey, supra note 18, Question 8 (July 2005 survey).
54. Quinnipiac Survey, supra note 18, Question 10 (May 2005 survey).
55. Quinnipiac Survey, supra note 18, Question 22 (2003 survey).
56. See James L. Gibson & Gregory A. Caldeira, Confirmation Politics and the Legitimacy of the U.S. Supreme Court: Institutional Loyalty, Positivity Bias, and the Alito Nomination, 53 Am. J. Pol. Sci. 139, 147 (2009) [hereinafter Gibson & Caldeira, Confirmation Politics] (studying which factors were most important to Americans when forming their opinions on judicial nomination of Justice Samuel Alito).
57. Throughout the remainder of this Essay, survey question text, percentages, and other data are based on the Constitutional Attitudes Survey, supra note 20. For specific citation references, see Tables 2-9 that accompany the text.
58. As described later in this Essay, we characterize as "originalists" the top quartile of the survey scoring highest on our originalism index derived from six questions asked on the 2009 and 2010 CAS depicted in Tables 3 and 4. The bottom quartile of scorers are denoted as nonoriginalists.
59. See infra text accompanying note 58 (describing methodology in creating originalism index).
60. These findings are consistent with those of James Gibson in recent survey work. He found that 74% of Americans believe that it is "very important" for Supreme Court Justices to "uphold the values of those who wrote the U.S. constitution long ago" and 68% consider it "very important" for such Justices to "empathize with ordinary people."
61. James L. Gibson, Expecting Justice and Hoping for Empathy, Miller-McCune, June 20, 2010, at http://www.miller-mccune.com/legal-affairs/expecting-justice-and-hoping-for-empathy-17677/ (on file with the Columbia Law Review).
62. See Constitutional Attitudes Survey, supra note 20, Questions 102a-102h (2009), at 20, 51-54.
63. See Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 Tex. L. Rev. 1753, 1753 (1994) ("Pluralistic theories of constitutional interpretation hold that there are multiple legitimate methods of interpreting the Constitution.").
64. See Constitutional Attitudes Survey, supra note 20, Questions 101 (2009), 102h (2009), at 20, 51, 54.
65. See id., Question 502bb (2010), at 31, 96.
66. See id., Question 502cc (2010), at 31, 97.
67. See id., Question 502aa (2010), at 31, 96.
68. See id., Question 101 (2009), at 20, 51.
69. See id., Question 503a (2010), at 35, 106.
70. See id., Question 102h (2009), at 20, 54.
71. See id., Question 502bb (2010), at 31, 96.
72. See id., Question 502cc (2010), at 31, 97.
73. See id., Question 502aa (2010), at 31, 96.
74. See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 291 (2007) (arguing right to privacy is commonly assumed by both sides of abortion debate to be inconsistent with text, history, and structure of Constitution).
75. See Andrew B. Coan, Talking Originalism, 2009 BYU L. Rev. 847, 859 (arguing even self-labeled originalists reject its strictest consequences, such as "permit[ting] the segregation of public schools and other public facilities; bans on inter-racial marriage; all manner of racial covenants in the sale of private property; bans on the sale of contraceptives; and, quite possibly, established state churches").
76. These questions include (1) the Quinnipiac question in both surveys, (2) the question as to the importance of Supreme Court Justices to "[u]phold the values of those who wrote our [C]onstitution two hundred years ago," as well as agreement or disagreement with the following statements: (3) "The Supreme Court should focus less on what the Constitution meant when it was written and more on the effect its decisions will have in today's America," (4) "The Supreme Court should read the Constitution as a general set of principles whose meaning changes over time," and (5) "The Supreme Court should recognize a right of privacy even though it is not explicitly stated in the Constitution."
77. Constitutional Attitudes Survey, supra note 20, Questions 101 (2009), 503a (2010), 102h (2009), 502aa-502cc (2010), at 20, 31, 35, 51, 54, 96-97, 106.
78. See supra notes 28, 30.
79. See Constitutional Attitudes Survey, supra note 20, Background Demographic Variables (2010), at 87.
80. See id. at 88.
81. See id. at 86.
82. See id. at 87.
83. See id. at 89.
84. See id. at 90.
85. See id. at 89.
86. See id. at 93.
87. See id., Question 5 (2009), at 18, 49.
88. See id., Question 27 (2009), at 16, 79.
89. See id., Question 26a (2010), at 36, 108.
90. See Constitutional Attitudes Survey, supra note 20, Questions 8-10 (2010), at 37, 109-10.
91. See id., Question 11 (2010), at 37, 110.
92. See id., Question 500 (2010), at 31, 94.
93. See id., Question 600 (2010), at 35-36, 107.
94. See id., Question 519a (2010), at 33, 103.
95. See generally Am. Nat'l Election Studies, at http://www.electionstudies.org (last visited Nov. 12, 2010).
96. See Constitutional Attitudes Survey, supra note 20, Questions 3a-3f (2009), at 29, 72-74.
97. See id., Questions 4a-4d (2009), at 29, 74-75.
98. See id., Question 6 Pairs A-C (2009), at 29-30, 75-76.
99. 410 U.S. 113 (1973).
100. See Constitutional Attitudes Survey, supra note 20, Question 510 (2010), at 32, 99.
101. See id., Question 204 (2009), at 21, 55.
102. See id., Question 205 (2009), at 21, 55.
103. See id., Question 206 (2009), at 21, 56.
104. See id., Question 511b (2010), at 32, 98.
105. See id., Question 207a (2009), at 22, 56.
106. See id., Question 208 (2009), at 22, 58.
107. See id., Question 209 (2009), at 22, 58.
108. See id., Question 517_1 (2010), at 33, 102.
109. See id., Question 517_2 (2010), at 33, 102.
110. See id., Question 517_3 (2010), at 33, 102.
111. See id., Question 517_4 (2010), at 33, 103.
112. See id., Question 519 (2010), at 33, 103.
113. See id., Question VR7a (2009), at 25, 64.
114. See id., Question 210 (2009), at 22, 59.
115. See id., Question 211 (2009), at 22, 59.
116. See id., Question 512a (2010), at 32, 99.
117. See id., Question 512b (2010), at 32, 100.
118. See id., Question 512c (2010), at 32, 100.
119. See id., Question 512d (2010), at 32, 100.
120. See id., Question 512e (2010), at 33, 101.
121. See id., Question 512f (2010), at 33, 101.
122. See id., Question 511c (2010), at 32, 98.
123. See id., Question 217 (2009), at 23, 62.
124. See id., Question 215 (2009), at 23, 61.
125. See Balkin, supra note 56, at 352 ("Roe v. Wade and the right to abortion have often been viewed as a controversial symbol of a 'living constitution'. in the views of its critics").
126. See Scalia, Common-Law Courts, supra note 15, at 40-41 (arguing evolving standards of decency approach "is preeminently a common-law way of making law, and not the way of construing a democratically adopted text" (internal quotation marks omitted))
127. Melissa Harris, Scalia Defends Judicial Views, Balt. Sun, Apr. 25, 2008, at 3B (noting Justice Scalia's view that because, for example, abortion or the death penalty are not covered in the Constitution, courts should leave such decisions to legislatures).
128. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008) (striking down District of Columbia's ban on handguns based on originalist position that Second Amendment protects individual's right to possess handgun unconnected with use in militia)
129. Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599, 600 (1982) ("Advocates of both sides [in the Second Amendment debate] draw upon the same historical data but interpret them differently in light of their presentday beliefs.").
130. Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47, 53-55 (2006).
131. Randy E. Barnett, Restoring the Lost Constitution 4, 67-68 (2004) ("With this analysis of constitutional legitimacy and natural rights, we will then be in a position to understand why the words of the Constitution should be interpreted according to their original meaning").
132. See John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. 383, 386-87 (2007) ("Supermajority rules permit[] only norms with substantial consensus to be entrenched. A broad consensus for the Constitution creates legitimacy, allegiance and even affection as citizens come to regard the entrenched norms as part of their common bond.").
133. Michael W. McConnell, The Role of Democratic Politics in Transforming Moral Convictions into Law, 98 Yale L.J. 1501, 1525 (1989) (reviewing Michael J. Perry, Morality, Politics, and Law (1988)).
134. CBS 60 Minutes, Justice Scalia on the Record, at http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml (on file with the Columbia Law Review) (last updated Sept. 12, 2008).
135. Chris Tisch, Scalia at Stetson Praises Original Intent View of Constitution, St. Petersburg Times (Fla.), Apr. 5, 2007, at 3B.
136. Clarence Thomas, Judging, 45 U. Kan. L. Rev. 1, 6-7 (1996).
137. Mark R. Levin, Liberty and Tyranny: A Conservative Manifesto 37 (2009).
138. Charles Krauthammer, From Thomas, Original Views, Wash. Post, June 10, 2005, at A23.
139. Rush Limbaugh, What Is Originalism?, The Limbaugh Letter, Dec. 2005, at 12.
140. For this reason, one might also, on this model, expect a negative correlation between originalist responses and the view that it is important for judges to "[r]espect the will of the majority of the people in the U.S." The difference between this question and the "strictly follow the law" question is that the latter situates fidelity to the law as the alternative to following majority will, whereas the former question leaves the alternative ambiguous. If a respondent views the alternative as obedience to the law, the two questions are very similar. If, however, a respondent views the alternative as judges exercising their independent judgment, then we would instead expect "rule of law" originalists to affirmatively choose the "respect the will of the majority" response.
141. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 163 (1990) ("[T]he attempt to adhere to the principles actually laid down in the historic Constitution will mean that entire ranges of problems and issues are placed off-limits for judges.")
142. Thomas, supra note 115, at 6-7 ("[W]hen interpreting the Constitution, judges should seek the original understanding of the provision's text [T]he Constitution means not what the Court says it means, but what the delegates of the Philadelphia and of the state ratifying conventions understood it to mean."). Given this ambiguity, we cannot confidently predict the "originalist" response to our "respect majority will" question on the Legal Hypothesis.
143. See Constitutional Attitudes Survey, supra note 20, Questions 102a-102h (2009), at 20, 51-54.
144. Sixteen percent of those who think it is not important at all for judges to "strictly follow the law" are also originalists. However, the number of people who chose that option was small-4%, or only 70 people of the 1,677 people surveyed-so the results are not statistically significant. As described in Table 2, supra, on most of these judicial values questions only a small number of people view any of these values as "not important at all." Thus, the apparent curvilinear relationship between these variables and the originalism index is spurious and only due to the tiny share of respondents who think these values are not important at all.
145. See Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 723 (1988) ("The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably be reconciled with original understanding.").
146. See infra Part IV (multivariate analysis).
147. But see Balkin, supra note 56, at 292 (arguing abortion rights are consistent with text and underlying principles of Fourteenth Amendment).
148. See Michael J. Gerhardt, Toward a Comprehensive Understanding of the Federal Appointments Process, 21 Harv. J.L. & Pub. Pol'y 467, 493-94 & n.83 (1998) ("Judge Bork's 1987 confirmation hearings were a watershed event insofar as the Senate's interest in preserving Roe v. Wade is concerned. Prior to the hearings, Roe's fate was primarily the concern of those responsible for judicial selection in the Reagan administration." (internal citation omitted)).
149. See Edwin Meese III, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. Tex. L. Rev. 455, 464 (1986) ("A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.")
150. see also Office of Legal Policy, U.S. Dep't of Justice, Report to the Attorney General, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation, at iii (1988) (analyzing fifteen major constitutional controversies, "the resolution of which [was] likely to be sharply influenced by the judicial philosophies of the individual justices who sit on the Court," and predicting how Constitution would look in year 2000 should issues be decided by a so-called activist Court).
151. Limbaugh, supra note 118, at 12. 128.
152. See Arthur Lupia & Mathew D. McCubbins, The Democratic Dilemma: Can Citizens Learn What They Need to Know? 207 (1998) ("[P]arties work to make their 'brand names' effective by linking policy positions and outcomes to the party.")
153. Michael Tomz & Paul M. Sniderman, Brand Names and the Organization of Mass Belief Systems 17 (Oct. 10, 2005) (unpublished manuscript) (on file with the Columbia Law Review) ("Political parties and elites arrange policies into coherent bundles and attach brand names, giving citizens the information they need to put together a consistent set of positions across an array of issues.").
154. See Constitutional Attitudes Survey, supra note 20, Question 202 (2009), at 21, 54.
155. See id., Question 203 (2009), at 21, 55.
156. See id., Question 204 (2009), at 21, 55.
157. See id., Question 205 (2009), at 21, 55.
158. See id., Question 206 (2009), at 21-22, 56.
159. See id., Question 511b (2010), at 32, 98.
160. See id., Question 207a (2009), at 22, 56.
161. See id., Question 208 (2009), at 22, 58.
162. See id., Question 209 (2009), at 22, 58.
163. See id., Question 517_1 (2010), at 33, 102.
164. See id., Question 517_2 (2010), at 33, 102.
165. See id., Question 517_3 (2010), at 33, 102.
166. See id., Question 517_4 (2010), at 33, 103.
167. See id., Question 519 (2010), at 33, 103.
168. See id., Question 212 (2009), at 22-23, 59.
169. See id., Question VR7a (2009), at 25, 64.
170. See id., Question 210 (2009), at 22, 58.
171. See id., Question 211 (2009), at 22, 59.
172. See id., Question 512a (2010), at 32, 99.
173. See id., Question 512b (2010), at 32, 100.
174. See id., Question 512c (2010), at 32, 100.
175. See id., Question 512d (2010), at 32, 100.
176. See id., Question 512e (2010), at 33, 101.
177. See id., Question 512f (2010), at 33, 101.
178. See id., Question 511c (2010), at 32, 98.
179. See id., Question 214 (2009), at 23, 61.
180. See id., Question 215 (2009), at 23, 61.
181. See id., Question 217 (2009), at 23, 62.
182. Originalists comprise 78% of those who identify as "extremely conservative," but the sample includes only 40 people in 2010 so identifying.
183. See Constitutional Attitudes Survey, supra note 20, Questions 7-11 (2010), at 36-37, 109-10.
184. See id., Question 500 (2010), at 31, 94.
185. See id., Question 600 (2010), at 35-36, 107.
186. See id., Question 519a (2010), at 33, 103.
187. Casablanca (Warner Bros. 1942).
188. Mary Douglas & Aaron Wildavsky, Risk and Culture 7 (1982).
189. Id. at 2-15.
190. Kahan & Braman, supra note 17, at 1315-18.
191. See Jamal Greene, On the Origins of Originalism, 88 Tex. L. Rev. 1, 69-71 (2009) [hereinafter Greene, Origins] (explaining how originalism's focus on traditional values and emphasis on original meaning often excludes alternative constitutional interpretations that would extend constitutional protections to traditionally unprotected groups).
192. See United States v. Lopez, 514 U.S. 549, 596-99 (1995) (Thomas, J., concurring) (arguing "substantial effects" test of federal power under Commerce Clause is inconsistent with original understanding and was invention of New Deal Court)
193. see also Paul Pierson, Dismantling the Welfare State? Reagan, Thatcher, and the Politics of Retrenchment 35 (1994) (arguing centralization of regulatory authority permits uniform fiscal policy and therefore makes it more difficult for businesses and individuals to respond to local taxes by relocating).
194. See U.S. Const. art. I, § 2, cl. 3 (counting individual slaves as three-fifths of a person for purposes of apportioning representatives and direct taxes among states); id. art. IV, § 2, cl. 3 (requiring escaped slaves to be returned to owners after flight into another state).
195. One reason this is a weak expectation is that our egalitarianism battery does not specify any particular domain of equality. We might hypothesize that those who believe racial minorities receive less opportunity in society are less likely to be originalist, but we might also assume that those who believe social life is unduly dominated by corporations or by the federal government are more likely to be originalist. Either of these groups might plausibly be coded as being uncomfortable with the present level of inequality in society.
196. See Constitutional Attitudes Survey, supra note 20, Questions 4a-4d (2009), at 29, 74-75.
197. See id., Question 6, Pair A-C (2009), at 29-30, 75-76.
198. See id., Questions 3a-3f (2009), at 29, 72-74.
199. See id., Background Demographic Variables (2010), at 87.
200. See id. at 88.
201. See id. at 86.
202. See id. at 87.
203. See id. at 89.
204. See id. at 90.
205. See id., Question 5 (2009), at 18, 49.
206. See id., Question 27 (2009), at 16, 79.
207. See id., Question 26a (2010), at 36, 108.
208. Cell entries denote unstandardized coefficients with robust standard errors in parentheses. * p<0.05; **p<0.01, ***p<0.001.
209. Neither of the significant variables is so highly correlated with our dependent variable so as to raise concerns, as one might reasonably suspect. Furthermore, the addition of these variables, as the stepwise regression indicates, only changes the r squared by 0.03 and all the other variables in the model remain significant.
210. See Mitchell N. Berman, Originalism is Bunk, 84 N.Y.U. L. Rev. 1, 8 (2009) ("Originalism comes in many flavors; varied distinct theses are fairly described as 'originalist' in tighter or looser senses.")
211. see also Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 244 (2009) (arguing originalism is "not a single, coherent, unified theory of constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label").
212. See supra Part IV (describing multivariate analysis).
213. For efforts at the former, see generally Greene, Origins, supra note 166 (arguing that originalist arguments in the United States emerge from, among other things, a particular reverence for the founding era, a backlash against the Warren Court, and a relative preference for political assimilation)
214. Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 Fordham L. Rev. 545, 549, 569 (2006) (arguing jurisprudence of originalism is distinct from its political practice, which "seeks to forge a vibrant connection between the Constitution and contemporary conservative values," and therefore should be the focus of scholars who seek to understand how originalism has "rewrit[ten] the face of the Constitution").
215. In regressions not presented here, we have divided up our sample between more and less knowledgeable respondents, as gauged by their correct answers to twelve questions concerning the Supreme Court and its recent decisions. Our model does a better job of explaining the variance for the more knowledgeable respondents (r squared = 0.65) than for less knowledgeable respondents (r squared = 0.50). For the more knowledgeable respondents, moral traditionalism, libertarianism, gun rights, religious/racially offensive speech, strict adherence to law, respect for precedent, and Obama approval are statistically significant variables. For less knowledgeable respondents, age, literal truth of the Bible, Roe, gay rights, gun rights, strict adherence to law, respect for precedent, and recent congressional approval are statistically significant variables. We might be able to spin a story from such results along the lines that culture and values are more important for the knowledgeable respondents, whereas issues are more important for the less knowledgeable respondents. Most would have expected the reverse to be true. We believe further moveresearch is needed to better evaluate the interaction of knowledge with these variables on attitudes toward originalism.
216. See supra Tables 6d & 6e (profiling data on originalists with respect to moral traditionalism and libertarianism).
217. See, e.g., John Micklethwait & Adrian Wooldridge, The Right Nation: Conservative Power in America 51 (2004) ("Buckley tried to fashion a synthesis out of three fractious components of 1950s conservatism: traditionalism, libertarianism and anticommunism.")
218. Kevin J. Smant, Principles and Heresies: Frank S. Meyer and the Shaping of the American Conservative Movement 49-52 (2002) (describing Meyer's efforts to "fuse" morally traditionalist and libertarian worldviews into a coherent philosophy).
219. Some of the fruits of the fusion of moral traditionalism and anti-government libertarianism are on display in the "Mount Vernon Statement" signed by many prominent conservatives in February 2010.
220. The Mount Vernon Statement, Constitutional Conservatism: A Statement for the 21st Century (2010), available at http://www.themountvernonstatement.com (on file with the Columbia Law Review). The statement begins, "We recommit ourselves to the ideas of the American Founding."
221. It then seeks to reconcile any apparent tension between economic libertarians, social conservatives, and national security hawks: A Constitutional conservatism unites all conservatives through the natural fusion provided by American principles. It reminds economic conservatives that morality is essential to limited government, social conservatives that unlimited government is a threat to moral self-government, and national security conservatives that energetic but responsible government is the key to America's safety and leadership role in the world.
222. Arguably the most prominent academic originalists are the libertarian Randy Barnett and the moral traditionalist Justice Scalia. They are the bookends of originalism in the legal academy and their differences were prominently on display in Gonzales v. Raich, in which Barnett argued for the respondent that Congress lacked the power to ban medical marijuana use by local growers whose conduct was legal under California law. 545 U.S. 1, 15 (2005) ("[R]espondents[]. argue that the [statute's] categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause."). Justice Scalia voted against Barnett's client, effectively in favor of moral paternalism over libertarianism.
223. See id. at 39 (Scalia, J., concurring) ("In the [statute], Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this.")
224. see also Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. Cin. L. Rev. 7, 14-15 (2006) (arguing Justice Scalia's vote to uphold ban on medical marijuana based on Necessary and Proper Clause revealed his "lack of fidelity to originalism").
225. Kahan & Braman, supra note 17, at 1315-18.
226. Id. at 1316.
227. See Balkin, supra note 56, at 292 (arguing originalism, properly understood, supports constitutional protection for abortion rights).
228. See generally Alexander M. Bickel, The Least Dangerous Branch (1986) (introducing concept of countermajoritarian difficulty created by judicial review).
229. See Nathaniel Persily, Introduction, in Public Opinion and Constitutional Controversy 3, 4 (Nathaniel Persily et al. eds., 2008) ("Under this view, what the Constitution means could change with each generation, not due to evolution in authoritative pronouncements from the Supreme Court, but from successful organization and persuasion by political leaders and the mass public.")
230. see also Post & Siegel, Roe Rage, supra note 22, at 374 (articulating theory of "democratic constitutionalism" that describes the process through which constitutional meaning emerges from interpretive contest among citizens).
231. See Kramer, supra note 22, at 252-53 ("[T]he authority of judicial decisions [should] formally and explicitly depend[] on reactions from the other branches and, through them, from the public.")
232. Robert C. Post, Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 8 (2003) ("[T]he Court in fact commonly constructs constitutional law in the context of an ongoing dialogue with culture, so that culture is inevitably (and properly) incorporated into the warp and woof of constitutional law.").
233. See Greene, Selling Originalism, supra note 12, at 701 ("[M]any non-originalist theoretical models need not only to acknowledge but also to accommodate the success of originalism as a political practice.").
234. See Persily, supra note 197, at 5 ("Curiously absent from the literature on popular constitutionalism or the countermajoritarian difficulty is any evaluation of what 'the people themselves' actually think about the issues the Supreme Court has considered.").
235. Recent books by Barry Friedman and Larry Kramer in the popular constitutionalist tradition, for example, have used historical "data" to valuable effect.
236. See generally Friedman, Will of the People, supra note 22 (chronicling history of Supreme Court's apparent responsiveness to popular opinion)
237. Kramer, supra note 22 (describing eighteenth- and nineteenth-century history of influence of citizen opinion on constitutional interpretation).
238. See Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. Cin. L. Rev. 1257, 1272-73 (2004) (explaining that empirically studying judicial behavior has limitations and difficulties because it "requires data that one can code and count" and therefore "tend[s] to focus on judicial votes rather than the language of the opinions themselves, a shortcoming whose seriousness is obvious").
239. Gibson and Caldeira note that: When we allow the respondents to tell us which issues are important to them, we touch on highly salient concerns and consequently find remarkably high levels of information about the perceived policy location of the nominee. Moreover, a new revisionist literature is developing that shows that the American people are vastly more knowledgeable about courts than heretofore thought Gibson & Caldeira, Confirmation Politics, supra note 40, at 147 n.17.
240. See Arthur Lupia, How Elitism Undermines the Study of Voter Competence, 18 Critical Rev. 217, 219 (2006) ("Political-knowledge questions test information that academics, journalists, and politicos value. The answers to these questions help such people accomplish important tasks. The elitist move is when such people assume that these questions have a similar value to citizens whose societal responsibilities can be very different from their own.").
241. See generally Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (1997) (identifying four phases in presidential politics over time, from leadership strategies based on relationships among elites, to more populist political approach based on public support)
242. Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007) (arguing presidents and political leaders have found it in their best interest to insulate Supreme Court and encourage Justices to be ultimate interpreters of Constitution)
243. see also Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279, 294 (1957) (arguing Court is least effective in making policy "against a current lawmaking majority-and evidently least inclined to act," while Court is most effective when setting "the bounds of policy for officials, agencies, state governments or even regions, a task that has come to occupy a very large part of the Court's business")
244. Brian J. Glenn, The Two Schools of American Political Development, 2 Pol. Stud. Rev. 153, 159-61 (2004) (analyzing distinction between two main schools of American political development scholarship)
245. Mark A. Graber, From the Countermajoritarian Difficulty to Juristocracy and the Political Construction of Judicial Power, 65 Md. L. Rev. 1, 6-14 (2006) (examining causes and consequences of judiciary's recent expansion in power).
246. See Victoria Nourse & Gregory Shaffer, Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?, 95 Cornell L. Rev. 61, 104 (2009) ("[F]or attitudinalists, judging is explained primarily (or, depending on the scholar, at least in significant part) by political inclination.").
247. See Constitutional Attitudes Survey, supra note 20, Question 102a (2009), at 20, 51-54
248. see also supra Table 8a.
249. See generally Whittington, supra note 205, at 4-5 (describing development of judicial supremacy and how it responds to interests of political branches and government actors).
250. See Greene, Selling Originalism, supra note 12, at 708-13 (arguing originalism responds to popular demand for simplicity, populism, and nativism in constitutional method).
251. See supra note 7 (noting Perry's belief that "[t]here is a sense in which we are all originalists").
252. See Kramer, supra note 22, at 46-47 (using phrase "people out-of-doors" to describe force of popular politics as interpretive impetus)
253. cf. Siegel, supra note 16, at 192 ("Heller's originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism.").
254. See Jill Lepore, The Whites of Their Eyes: The Tea Party's Revolution and the Battle over American History 15-16 (2010) (noting that having worldview that says "that we are there, or the Founding Fathers are here, or that we have forsaken them and they're rolling over in their graves because of the latest, breaking political development" is to believe in "a set of assumptions about the relationship between the past and the present stricter, even, than the strictest form of constitutional originalism, a set of assumptions that, conflating originalism, evangelicalism, and heritage tourism, amounts to a variety of fundamentalism").
255. See Jaroslav Pelikan, Interpreting the Bible and the Constitution 38-39 (2004) (comparing Biblical and constitutional interpretation)
256. Greene, Origins, supra note 166, at 78-81 (noting parallels between attitudes toward constitutional interpretation and attitudes toward Biblical interpretation).