On the hypotheses that lie at the foundations of originalism.

• Author: Harrison, John

Constitutional law, as taught in American law schools today, is primarily a course in religious indoctrination. Stories are told about the gods and heroes that in part convey information, but mainly shape the character of the students, teaching them appropriate emotional reactions so that they can be good members of the community.

My constitutional law teacher did not do it that way. He rejected the gods of the city. He brought in new gods. And he corrupted the young. Thirty years later, still corrupt but no longer young, I will do as my constitutional law teacher taught me, and disagree with him.

One of the questions considered by the essays collected in this volume is: "Is Originalism an effective bulwark against judicial activism? Or, is the approach just as susceptible to indeterminacy and abuse as any other judicial philosophy?" On that score, Robert Bork, my constitutional law teacher, says:

The interpretation of the Constitution according to the original understanding ... is the only method that can preserve the Constitution, the separation of powers, and the liberties of the people. Only that approach can lead to what Felix Frankfurter called the "fulfillment of one of the greatest duties of a judge, the duty not to enlarge his authority." (1) I do not think that is true. I am deeply skeptical of the capacity of any methodology to constrain any interpreter and thereby to keep Americans from doing what they love to do, which is to find that their Constitution is good, and, therefore, contains what it needs to contain. I also have a second-order disagreement with that claim: I do not think it is very important. I will mainly discuss my grounds for skepticism about the substance of Bork's claim concerning originalism, and then briefly consider whether originalism's capacity to constrain interpreters is an important question.

Can originalism, or any methodology, keep interpreters from interpreting the Constitution along the lines that they think good? I will give three grounds for thinking that it cannot, each of which relates to one of three slightly different ideas of what originalism is.

Originalism is often understood as giving special place to the views of people at the point of origin in time of a legal text. Originalism means following the views of those people. If that is what originalism means, and if originalism is constraining, then people who had to be originalists because of their location in time, for example because they were located right after the Constitution was ratified, would have been more constrained than subsequent interpreters. That is unlikely, so it is unlikely that originalism in this sense is constraining.

One way to see how unlikely is to read the first volume of David Currie's wonderful books about the Constitution in Congress. (2) In that book Currie recounts and analyzes in brilliant detail the arguments about the Constitution that took place when it was still new, at a time when every interpreter's methodology, whatever it was, had to be "originalist," because the origin had been so recent. One lesson of Currie's books, including that first volume about the time of the Constitution's origin, is that interpreters' positions on constitutional questions overwhelmingly lined up with what they thought were good ideas. (3)

Another example comes, not from the early history of the primary document, but from the early history of the first of the three Reconstruction Amendments, the Thirteenth Amendment. That Amendment was proposed by Congress in the late winter of 1865 and ratified in December of that year. (4) Within a year of its proposal, and within less than a year of its adoption, there was a major fight over what it meant. The primary question left unclear by the Amendment's text was whether it went beyond eliminating the forced labor relationship of master and slave, and also affected legal rights other than pure self-ownership. (5) An especially important aspect of that issue was whether the Amendment entitled freed slaves to all the civil rights of other free people. (6)

There was a major debate about that last question immediately after the ratification of the Thirteenth Amendment, one that started within weeks of the Amendment's adoption. Soon after its ratification, Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee and a leading proponent of the Amendment, introduced legislation that would become the Civil Rights Act of 1866. (7) That legislation forbade race discrimination with respect to civil rights, ensuring that freed slaves would have the same civil rights as white people. Senator Trumbull and most of the supporters of the legislation argued that Congress had power to enact it under Section 2 of the Thirteenth Amendment, because of the connection between slavery and race discrimination with respect to civil rights. (8) There was a hard struggle over the Civil Rights Act's constitutionality, in Congress and with President Johnson, over whose veto it was eventually adopted. (9) In all the debates over the Civil Rights Act, the participants' views on the constitutional question lined up significantly (not exclusively, but mainly) with their views as to what was sound policy. Those participants were all originalists; they had to be, because there had been no time in which to become anything else. They were still at the origin point. They do not seem to have been much constrained by their status as originalists.

The second understanding of originalism that I will address is more specific. It takes seriously the point that "original" in this context is an adjective, as in "original intent," and that an...