The American Constitution and the Debate over Originalism.

• Author: Whittington, Keith E.
• Position: Book review

THE AMERICAN CONSTITUTION AND THE DEBATE OVER ORIGINALISM. By Dennis J. Goldford. (1) Cambridge University Press, New York. 2005. Pp. xi, 305. $75.00 (hard); $29.99 (paper).

"The only jurisprudence that has made it into the public sphere is ... originalism." (3) Since the 1980s, conservative Presidents and legal intellectuals have very visibly insisted on original meaning as the touchstone of constitutional interpretation. Lawyers in and around the Reagan Administration settled on originalism as the essential core within the general conservative rhetoric lambasting "judicial activism" and exhorting "strict constructionism" and then helped shape this general disposition into a relatively concrete theory of constitutional interpretation and judicial review. The conservative commitment to originalism at least kept it on the political agenda and impressed it into the public consciousness. Originalism fared less well in the scholarly debates over constitutional theory in the 1980s, but it remains one of the contenders as a large-scale theory of constitutional interpretation, and there is little question that historical inquiry into original meaning remains a standard (if not decisive) mode of constitutional argumentation.

It is perhaps a propitious time to return to the originalism debates. The administration of President George W. Bush has not mounted the same sort of public campaign for originalism that the Meese Justice Department did, but that is in part because two decades after the founding of the Federalist Society and the ill-fated nomination of Robert Bork to the Supreme Court, the Bush administration can take originalism for granted as part of its intellectual and political background. Confirmation fights over conservative judicial appointments and continuing controversy over the Supreme Court's constitutional jurisprudence give originalism renewed prominence. Although for many the originalism debates remain forever frozen in 1987, a "new originalism" has been developing within the scholarship for many years now and the dance of originalist proponents and critics requires some new moves. (4)

Dennis Goldford's new book revisits the originalism debate with a goal of getting past it. What is interesting about originalism for him is precisely how it illuminates general problems of American constitutional theory. With a clear-eyed picture of the Constitution, he argues, we can get beyond originalism and nonoriginalism and develop a constitutional theory that transcends that old division. Goldford's proposed alternative, what he calls "a theory of constitutional textuality," shares a great deal with recent constitutional theorizing and is often quite illuminating, of both the Constitution and constitutional theory (p. 10). Somewhat surprisingly, I found myself largely in agreement with the book, despite its being pitched primarily as a critique of originalism. Perhaps this suggests that Goldford has transcended the originalism debate after all, though I do not think so. There is a great deal of theoretical common ground to be found out there, but there are still important points of disagreement. It is worth locating both. In order to do so, Part I of this review summarizes Goldford's argument, Part II raises a problem of constitutional authority that is not adequately answered in this theory of constitutional textuality, and Part III sketches an approach that situates originalism within American constitutionalism, accommodating if not transcending originalism and nonoriginalism.

1. GOLDFORD'S CRITIQUE OF ORIGINALISM AND THEORY OF CONSTITUTIONAL TEXTUALITY

   Much of the book is framed as a review of the originalism debate and as a critique of originalism. For those looking for an accessible introduction to that literature, Goldford is a reliable and fair guide. While he provides critical commentary on the arguments that have been made by others (almost always siding with the critics of originalism), this discussion does not significantly redefine the terms of the debate or significantly advance its margins.

   Goldford first introduces the "debate over originalism" as the indirect exchange between Attorney General Edwin Meese and Associate Justice William Brennan in 1985. While Meese and allies such as Robert Bork accused those who would abandon the original meaning of the Constitution when engaging in judicial review as engaging in naked politics, Brennan charged that the originalists merely chose to disguise their politics. Goldford takes this charge quite seriously, and thus spends some time attempting to identify "at least one instance in which originalists acknowledge that a liberal result is generated by originalist interpretation," and thereby saving "originalism from originalists themselves" (pp. 37, 38). He finds such a savior in Justice Hugo Black, whose argument about the historical meaning of the Fourteenth Amendment's due process clause proved able to "yield liberal as well as conservative results" (p. 50). With the example of Black before us, we are apparently in a position to take originalism seriously as a theory of constitutional interpretation, partly freed from the taint of its association with conservative advocates.

   With those preliminaries out of the way, Goldford divides the debate over originalism into several distinct arguments. In each, originalists and their critics are shown to embrace a series of sharp dichotomies. Those dichotomies are then subverted to show that each side has only a partial grip on the proper understanding of American constitutionalism. Whether in the context of disagreements over a living constitution versus a fixed constitution, interpretation versus noninterpretation, objectivity versus subjectivity, originalists are understood to be driven by the fear of unconstrained judges exercising discretion to make policy from the bench, and consequently the need for a set of fetters by which judges can be tied down. Goldford ranges widely in presenting these debates. He does not limit himself to the most prominent public or scholarly defenders of originalists but freely pulls in historical judges and politicians, relatively obscure law review articles, and those who might not be thought of as originalists at all, such as Harry Jaffa. The criticisms of originalism are generally drawn from the expected sources.

   For those seeking an overview of the ins and outs of the debate over originalism in the 1980s, the first several chapters of The American Constitution and the Debate over Originalism are a convenient source. The coverage can be somewhat idiosyncratic, however, and the focus is on the big dividing lines between originalists and their opponents rather than on the contours or development of originalism itself. Gregory Bassham's Original Intent and the Constitution remains the essential source for a comprehensive and analytically sharp overview of the originalist theories of the 1980s. (5) Johnathan O'Neill has now done for originalism what Laura Kalman did for "legal liberalism," (6) providing a serious intellectual history of originalism from the postwar period to the present. (7)

   The summary and critique of originalism is ultimately a secondary aim of the book, however. The primary purpose of the extended journey through the originalism debates is to lay bare some basic issues in American constitutionalism and to set up Goldford's own response to those issues. This is a somewhat indirect path to the desired endpoint, encouraging some repetition in the presentation (key arguments are repeated nearly verbatim in several chapters). It also tends to focus attention on the criticism of originalism even though Goldford ultimately wants to reject both originalism and "nonoriginalism," and his departure from nonoriginalism is left less apparent than it might otherwise have been.

   Goldford sees the modern originalism debate as more than just an episode in Reagan-era politics. It is rather a manifestation of our recurring struggle with "the very nature of the American constitutional system itself," the commitment to binding politics and the future with a written Constitution (p. 9). Americans are "a people who live textually," but only to the extent that we allow society to be controlled by the "meaning of its fundamental constitutive text" (p. 4). This way of social ordering means that "political conflict over principles basic to and definitive of American society quite naturally finds expression in conflict over interpretation of the fundamental text that formalizes those principles and renders them authoritative" (p. 3). But this political dynamic gives rise to the anxiety that the Constitution will become the plaything of political opponents, its meaning being erased and written over by political actors. We might, as Jefferson feared, "make it a blank paper by construction" (p. 9). Rather than being the master of politics, the Constitution may become its servant. Originalists may feel this anxiety most strongly, and thus they have pressed particularly forcefully on the need for a method of constitutional interpretation that will limit judicial discretion and maintain constitutional fidelity. Goldford is not persuaded by their response to that anxiety, but he takes their concern seriously and sees it as lying at the heart of the American constitutional project.

   Goldford's dissatisfaction with originalism as an answer to what it means to "live textually" is straightforward. It is the commitment to constitutional interpretation--the willingness to argue in...