Essay by Lawrence B. Solum
One might easily paint a picture in which the central question debated in constitutional jurisprudence in recent years was whether originalism is the correct theory of constitutional interpretation. This portrait of a constitutional debate could be quite dramatic. Prominent among the figures on the originalist side stand former Judge Robert Bork, Chief Justice William Rehnquist, former Attorney General Edwin Meese, and scholar Raoul Berger. Their opponents, the nonoriginalists, include Senator Joseph Biden, Associate Justice William Brennan, and a host of constitutional scholars. The stakes of the debate seem high: will the legacy of the Warren Court be dismantled by the Rehnquist Court's efforts to interpret the Constitution in accord with the intentions of its framers? The debate reached millions of homes through extensive media coverage of the confirmation hearings of Judge Bork. Bork's defeat might be viewed by some as the climax of the debate, and as a victory for the nonoriginalists.
The controversy over originalism has been the focus of dozens of scholarly articles, and it is featured prominently in monographs on jurisprudence, constitutional theory, and legal history, including Michael Perry's Morality, Politics, and Law. Put in historical perspective, the debate between originalists and nonoriginalists might be seen as the most recent episode in a long series of debates over the role of the Supreme Court in American political life, including, for example, the debate between interpretivists and noninterpretivists or that between strict constructionists and their opponents.
Perhaps many of the participants in the originalism debate would accept the accuracy of the portrait I have painted. No doubt many of them sincerely believe that something both practically and theoretically significant was at stake when one attacked or defended the proposition that the Constitution should be interpreted in accord with the original intent of its framers and ratifiers. But the history of such debates gives us reason to pause before we agree. For example, “strict construction”—the phrase Richard Nixon used to refer to the brand of constitutional jurisprudence he preferred—is now recognized as a virtually meaningless phrase. It was never more than a rallying cry for a set of positions on a number of distinct constitutional issues; “strict construction” represents no coherent theory or principle of constitutional interpretation today.
The debate between interpretivists and noninterpretivists suffered a similar fate. Liberal constitutional scholars championed noninterpretivism as an approach to constitutional jurisprudence that might ground decisions like Griswold v. Connecticut, which seemed unconnected with particular passages in the United States Constitution. But noninterpretivism was never an accurate description of a serious position in constitutional theory; on the one hand, no one was denying the relevance of interpreting the constitutional text in constitutional adjudication, and on the other hand, no one was contending that the text alone was sufficient.
The debate between originalists and nonoriginalists has begun to suffer a fate similar to these earlier debates in constitutional theory and practice. This Essay is one of a growing number of recent attempts to look back at the originalism debate now that both the critics and defenders of originalism have stated their positions and replied to arguments of their opponents. My conclusion, however, is unlikely to give solace to either side. As originalism has been modified and defined in reaction to nonoriginalist critiques, the originalist's position has become more and more plausible as a theory of constitutional interpretation. When I say plausible as a theory of constitutional interpretation, I mean that the most sophisticated forms of originalism provide an accurate description of the phenomenology of constitutional practice. The Constitution is interpreted in light of the purposes and concerns that animated its framing and ratification.
As a matter of the theory of interpretation, originalism captures an important aspect of constitutional practice. But the originalists have won a Pyrrhic victory. As originalism has been clarified in response to its critics, it has gradually become more and more evident that it has no force as a critique of the kind of constitutional interpretation practiced by the Warren Court. Indeed, I will argue that originalism can serve as the basis for what Michael Perry calls “transformative politics.”
My effort to make good on this analysis of the originalism debate begins with Michael Perry's perceptive and eloquent analysis. Perry places himself in the nonoriginalist camp, but expresses his discomfort with the label he has chosen:
Although it is serviceable for present purposes, I'm not comfortable with the “originalist/nonoriginalist” terminology. 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. But there is a sense, too, in which none of us is an originalist: As Gadamer, for one, has taught us, we cannot travel back to the origin, no matter how hard we try, and we deceive ourselves if we think we can.
Perry is right, but he does not fully realize the implications of his argument. Perry continues, “I'll happily abandon the originalist/nonoriginalist terminology as soon as someone suggests a terminology that better captures the fundamental difference animating contemporary constitutional-theoretical debate.” In light of the recent history of constitutional theory, it would hardly be surprising if someone did suggest a new term to capture the “fundamental difference” that Perry and others presume is at the root of the sequence of debates over “strict construction,” “interpretivism,” and “originalism.” But Perry's basic presumption that there is a fundamental difference between his own position and that of the originalists is wrong. There is no such fundamental difference in theories of constitutional interpretation that merely awaits a more cogent expression or more apt terminology.
Part I of this Essay elaborates upon Perry's observations that, as a matter of hermeneutic theory, we all are originalists and we all are nonoriginalists; theoretically, there is no real distinction between originalism and nonoriginalism. Part II provides evidence that, as a matter of practice, self-professed distinctions between originalists and nonoriginalists are even more dubious; nonoriginalists respect and rely upon originalist arguments, and originalists frequently ignore evidence of the framers' intentions. Part III applies my arguments to Perry's own theory of constitutional interpretation. Perry's view of the relationship between constitutional interpretation and prophecy illustrates a powerful but neglected insight about originalism: The Constitution has a radical potential to disturb and disrupt our constitutional practice in part because the principles that animated the framing and ratification of the Constitution can prompt us to change our own understanding of constitutional meaning.
About the Author
Lawrence B. Solum. Professor of Law and Rains Fellow, Loyola Law School, Los Angeles, California.
Citation
63 Tul. L. Rev. 1599 (1989)