1. Originalism 1.0: Doing History
Originalists’ retreat from history was not pre-ordained. Indeed, initially, to do originalism was to know history—at least in theory. Originalism first emerged in the 1970s and 1980s as a conservative response to the perceived activism and abuses of the progressive Warren and Burger Supreme Courts. Those on the political right complained that, under the auspices of a “living Constitution,” judges were substituting their own progressive preferences in place of what the Constitution actually licensed. In so doing, judges, rather than dutifully following the Constitution, were authoring it anew, an activity that subverted the foundational relationship of constitutionalism—that those in power are subject to the Constitution and not the other way around. If justices were to be constrained from legislating from the bench, then they had to be stripped of their interpretive license. And the only way to do that, the thinking went, was to undermine the living Constitution. The document’s meaning could not evolve with the times; barring formal amendments emanating from the sovereign people, its meaning had to remain fixed and constant over time. Combined, these theoretical presuppositions thus mandated that the Constitution’s operative meaning had to be its original meaning. And those who endorsed this constitutional vision began calling themselves originalists.
Privileging original meaning was, thus, at its inception, driven by presentist aims. The theory’s main agenda was to recalibrate how judges, lawyers, and citizens related to the Constitution in the present. But no matter the primary goals, the theory necessarily required a methodological corollary; it was one thing to defend the notion that original meaning ought to constrain contemporary judicial behavior, it was quite another to explain how a committed interpreter might locate such meaning in the first place. Only in identifying original meaning credibly could originalists advance the second and altogether more important aspect of their agenda, one that directly implicated historical practice. For, on its face, recovering something like original constitutional meaning would seemingly require doing history.
Sunday, April 2, 2017
Jonathan Gienapp on History and Originalism
Check it out here. A taste: