February 8, 2013
The last few decades have witnessed a refinement of originalist theory since the late Robert Bork launched contemporary originalism with his 1971 Indiana Law Journal article, "Neutral Principles and Some First Amendment Problems." Begun as a reaction against the perceived lawlessness of the Warren Court, originalism had from the start a reflexive quality that saw itself as a means to constraining judges rather than as a positive theory of constitutional adjudication.
But as originalists made inroads in the legal academy and, during the Reagan presidency, in the judiciary, they had to demonstrate that they offered an intellectually sound alternative to the reigning jurisprudential doctrines rather than just a pseudo-political creed. This process has produced a flurry of disagreement among legal theorists about the core commitments of originalism and how those commitments are best achieved. The depth of these divisions has led non-originalists Thomas Colby and Peter Smith to declare that originalism is "a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label."
Into this scholarly row step the twelve theorists of The Challenge of Originalism: Theories of Constitutional Interpretation, edited by Grant Huscroft and Bradley W. Miller, both law professors at the University of Western Ontario. This collection of essays highlights the primary schools of thought contending over originalism's future. A major point of contention is whether the original meaning of the Constitution includes the way its enactors believed the text would apply to contemporary phenomena. Justice Antonin Scalia, answering in the affirmative, has argued that the death penalty, for example, cannot be unconstitutionally cruel and unusual today if it was considered constitutional at the time the 8th Amendment was enacted. But there is an emerging rejection of Justice Scalia's position among originalists. Lawrence Solum argues in this volume that there is a difference between the meaning of a text and how its authors thought it would be applied, though Brian Bix provides a nuanced argument for why application and meaning may tend to merge with regard to normative and legal texts.
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This type of disagreement is nothing new. Debates about what constitutes textual meaning have long preoccupied originalists, and some of the essays in this volume re-litigate disputes that have largely been resolved, such as whether the original meaning of the Constitution is located in the intentions of the founding generation or in the public meaning of the text. Essays by Larry Alexander and Stanley Fish reject this distinction altogether, contending that text has no meaning without intention and that the search for one is the search for the other. Today, the great majority of originalists, following the lead of Justice Scalia, disclaim the search for authorial intention, but the rearguard action of Alexander and Fish usefully points to the conceptual appeal of intentionalism even as it nears academic death.
The distinction between constitutional interpretation and constitutional construction, by contrast, is very much alive and is central to this volume. Several prominent theorists, including Solum, Randy Barnett, and Jack Balkin, have argued that interpretation concerns finding the semantic meaning of the constitutional text, whereas construction involves application of that meaning to particular cases. Crucially, these theorists contend that originalism's domain is solely interpretation. In their view, so long as one respects the semantic meaning of the text, individual cases can be decided on the grounds of normative theories like libertarianism or progressivism without violating originalism.
Solum and Jeffrey Goldsworthy describe this argument in the volume, and it is assumed to be valid by some of the contributors. There is a kind of smug self-assuredness in this assumption, a belief that the interpretation/construction distinction solves many of originalism's alleged problems, especially its tendency to call many significant judicial decisions into question. "Smug" is the right word, given that the distinction was only recently introduced into originalist theory and its impact is only now being worked out. Steven D. Smith boldly challenges these theorists to reflect longer on whether there is a meaningful difference between interpretation and construction and whether the distinction threatens to destroy originalism by collapsing it into living constitutionalism. This concern is bolstered by Balkin and Solum's view that originalism and living constitutionalism are reconcilable. As theorists rush to proclaim an end to the opposition between originalism and living constitutionalism, Smith rightly sounds a note of caution.
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It is regrettable that Barnett and Balkin are missing from this volume. Their theories are at the forefront of the battle for the meaning of originalism, and direct engagement between them and their critics would be useful. Similarly, advocates of more traditional theories of originalism, such as Michael McConnell, are conspicuously absent. Still, by highlighting these internal struggles over originalism's future, The Challenge of Originalism does legal scholarship a great service. It is unclear what originalism will look like a decade from now, but the disagreements laid out in these essays will play a major role in shaping it.