Originalism - the forgotten years.

• Author: Cross, Frank B.

Originalism became best known as a Reagan era conservative reaction to the Warren Court era and the desire to restrain what was perceived as judicial activism. Pam Karlan notes that "[o]riginalism as a primary theory of constitutional interpretation had its origin in the conservative attack on various Warren Court decisions." (1) James Fleming declared that originalism was "a conservative ideology that emerged in reaction against the Warren Court" and "did not exist" prior to that time. (2) The Warren Court was "accused of ignoring the original meaning of the Constitution." (3) The Court was charged with "abandonment of originalism." (4)

Few disagree with this story. For the most part liberal critics are happy to accept the thesis and approve of the Warren Court's "living Constitution." Jack Balkin's efforts to defend a liberal originalism have generally not sought to claim that the Warren Court was engaged in authentic originalism. Yet this widespread acceptance of the nature of the Warren Court's jurisprudence has not been closely examined. In this article, I explore originalism in the Warren Court and its meaning.

1. THE PRACTICE OF ORIGINALISM IN THE WARREN COURT

   Authentic reliance on originalism can be difficult to measure. Legal commentators have critiqued Supreme Court opinions as non-originalist, but such commentators are not a definitive resource for accurate resolution, and they may be influenced by their own ideological biases. There is, however, a readily available test for whether the Justices are using originalism--the legal materials upon which their opinions rely. I examine the use of originalist sources during the Warren Court.

   The potentially relevant originalist sources are myriad, but some stand out as especially important. The Federalist has been called "the most important of originalist sources." (5) This is certainly true for the Supreme Court, which has cited to this resource more than twice as often as any other originalist source, from 1955 to 1984. (6) James Madison suggested that The Federalist was "the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it." (7) Edwin Meese, the primary author of originalism in response to the Warren Court, declared that it was The Federalist "which explained the Founders' intent." (8)

   A second important originalist resource is Elliot's Debates, a record of the ratifying discussion for the Constitution. (9) Contemporary understanding of originalism gives central importance to the ratification of the Constitution and the understanding of the ratifiers. Today's originalism focuses on original meaning, rather than any subjective intent. The ratifiers are commonly regarded as the best resource on such original meaning. (l0) Until very recently, Elliot's Debates was the primary source of ratification records, commonly used by the U.S. Supreme Court.

   A third originalist resource worthy of consideration is James Madison's notes on the constitutional convention (Farrand). (11) Although originalists tend to place more importance on the ratification of the Constitution than on its drafting, Madison's records of the convention might still have importance in ascertaining the original meaning of the text. These were the second most used source of original intent at the Supreme Court between 1953 and 1984. (12) Some suggest that statements in the privacy of the convention may be more reliable evidence of original meaning than public claims of partisans in the ratification debates. (13)

   Numerous other originalist sources are available to the Court, including dictionaries, early court opinions, corresponddence among framers, commentaries, actions of the First Congress, and other documents, but The Federalist, Elliot's Debates and Farrand are the most prominent originalist resources used by the Court.

   My study on the use of these originalist sources has Justice-votes for opinions relying on such originalist sources as the unit of analysis in the cases in which at least one opinion utilized this source. For an example of the operation of the coding system, consider Hamdi v. Rumsfeld. (14) Justice Souter wrote an opinion concurring in part and dissenting in part, which was joined by Justice Ginsburg, in which he cited The Federalist. (15) Justice Scalia wrote a dissenting opinion in which he was joined by Justice Stevens, which also cited The Federalist numerous times. (16) Justice Thomas wrote a dissenting opinion, in which he cited The Federalist once. (17) The majority opinion, authored by Justice O'Connor and joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer, did not cite to The Federalist. (18) Under my coding, Justices Souter, Ginsburg, Scalia, Stevens, and Thomas receive a "1" in the column for this case, for citing The Federalist. (19) Justices O'Connor, Rehnquist, Kennedy, and Breyer receive a "0" in this column for this case, because some other Justice relied on The Federalist in an opinion in the case and they did not.

   Counting Justice-votes is preferable to counting decisions. It reveals the strength of originalism by the number of Justices an opinion commands. Moreover, this approach captures the use (or lack of use) of originalism in concurring and dissenting opinions.

   There is no way to discern whether a Justice truly relied on originalist sources in reaching a decision. Such sources might simply "decorate" an opinion, for public consumption, without actually playing a role in the Justice's decision making. But any attempt to evaluate the causative influence of the originalist source would require mind reading. Many constitutional opinions contain no originalist references whatsoever, (20) so the presence of such a resource reveals some deference to the interpretive methodology.

   All Justice-votes are counted equally. One might suggest that the opinion author be given particular credit for originalist references, as the drafter. The author may not truly control the opinion, though, except for a lone dissent or concurrence. Research shows that an opinion author may be required to make various compromises to retain the coalition behind his or her opinion. For majority opinions, political science research suggests that their content is driven by the preferences of the necessary fifth voter. (21) Efforts to analyze the question empirically have found that the opinion author has unique influence over the opinion's content, but that other Justices also have influence. (22) I presume that each Justice joining an originalist opinion is additional evidence of the role of originalism.

   There are occasional cases in which a Justice references an originalist source, such as The Federalist, and then holds that it is not helpful to resolve the case before the Court. These are included in my analysis. Recognizing and distinguishing an originalist source is testimony to its importance to the Justice, and an authentic...