Forms of originalism and the study of history.

• Author: Harrison, John (British inventor)
• Position: Panel II: Original and Historical Truth - Federalist Society 2002 Symposium on Law and Truth

I will discuss two different kinds of originalism and the demands they place on the discipline of history.

I was an eyewitness to the development of the first kind of originalism, which I will call Originalism Mark I. In the fall of 1977 at the Yale Law School, I was a first-year law student taking Constitutional Law I from Robert Bork. Bork was rejecting the gods of the city, bringing in new gods, and corrupting the young. He was creating Originalism Mark I, which we associate primarily with him and Antonin Scalia, and I was able to see either its beginning or middle stages first hand.

Originalism Mark I has several features that are fundamental to understanding it and to understanding the way it seeks to draw on historical knowledge. First, it began in the rejection of judicial subjectivity. That factor, more than any other, drove this form of originalism. The early originalists found it absurd that judges were making significant policy choices given the manner in which they are selected. They also found it impossible to explain what judges had been doing for the preceding twenty or thirty years unless the judges had been making choices that reflected their own views of desirable results and not general, impersonal legal principles. (1) I call the phenomenon against which the originalists reacted judicial subjectivity to emphasize the point that when there is judicial subjectivity the identity of the judges, and in particular the political and ideological views of the judges, matter enormously for the content of the law. (2)

The intuition, that judicial subjectivity was rampant and very bad, got Originalism Mark I going. Nothing more systematic or methodological lay behind it, and there was nothing in the original impulse that pointed specifically toward originalism.

Let me summarize briefly the case against judicial subjectivity. It comes in static and dynamic forms. The static form is that federal judges are selected indirectly and serve for life, which makes their tenure undemocratic (originalists are obsessed with unallocated federal judges even though most American judges are not federal and are not unallocated). If we believe that policy should reflect the electorate's view, such undemocratic process is inappropriate.

History is more ironic than any fiction can be, and one of the fine ironies here is that the principal example for the dynamic case against judicial subjectivity is the controversy over the nomination of Robert Bork. As Justice Scalia remarked in a related context, the American people love democracy, and if they discover that Supreme Court Justices are policymakers, they will demand that the making of Justices become more democratic, which is to say more political. (3) The results were on display in 1987.

In the development of Originalism Mark I, the natural question is why would a rejection of judicial subjectivity, and in particular of judicial subjectivity as practiced by the Warren and Burger Courts, lead someone to become an originalist? The answer must be speculative, especially if the connection is not one of substance, but of historical accident (or not of logic, but of experience). Consider some of the Warren and Burger Courts' most controversial decisions, such as those concerning legislative apportionment, the death penalty, abortion, and sex discrimination. (4) All of the decisions represented striking departures from seemingly well-settled principles. Legislative malapportionment, like the death penalty, was as old as the Republic, and although both had been subject to much criticism, neither had been thought of as a constitutional problem. (5) In similar fashion, abortion had been a crime for many decades, and while that too had been controversial, it apparently had not occurred to anyone that the prohibition might be unconstitutional. (6)

Then, like a bolt from the blue the Supreme Court, in the course of little more than a decade, decided that there was something wrong with these long-standing practices. To a lawyer who thinks of the Constitution as analogous to a statute, which is to say as a legal document that reflects a still-authoritative political decision from some time in the past, such an about face is deeply suspect. And without lengthy pondering of methodological puzzles, many lawyers will respond to such a decision by stating that it contradicts the original intent. The idea that laws should be interpreted in accordance with the intent of those who wrote them was hardly an invention of critics of the Warren Court or of originalists. It was a standard, although controversial, lawyer's move, and a natural one to make under such circumstances. (7) It did not require a particularly nuanced or sophisticated concept of original intent to say that there had been a departure from original intent when, after a century of practice to the contrary, the Supreme Court discovered that the Constitution severely constrains regulation of abortion. (8) As of 1973, complaining about departures from original intent seemed like shooting fish in a barrel.

None of this was lost on the judges who made those decisions, and their response to allegations of departure from the original intent provided a second important push of their critics in the direction of originalism. The normative power of the original intent was not an innovation of 1970, and neither was it news that a lot of what the Court was doing was out of step with that norm. Proponents of the new doctrines built into their rhetoric attacks on static understandings of the Constitution and revived the standard notion that it was a living document that had to be kept up with the times. (9) Their rhetoric was only casually, and not systematically, anti-originalist. It was about not letting the country remain mired in the past and not about problems with collective intent or indeterminacy in the historical record or the meaning of language changing over time.

But the enemy of my enemy is my friend, and if supporters of the Court's controversial doctrines were attacking the hidebound past, then there must have been something to be said for the hidebound past. If advocates of judicial subjectivity must struggle against the original intent in order to free the courts to do good, then opponents of judicial subjectivity must demand that courts adhere to the original intent so that they will do law.

One more factor helps account for the appeal of the original intent in the formation of Originalism Mark I. For the critics of the Warren and Burger Courts, the political positions commonly associated with the framers were congenial. The framers were in favor of limited government, federalism, and private property. They were not in favor of top-down social and cultural transformation. That sounded like a pretty good idea to the people...