Is originalism too conservative?

• Author: Whittington, Keith E.
• Position: Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism

Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. (1) This is no surprise given the history of modern originalist theory and constitutional politics. Although originalist arguments have a long pedigree, self-conscious originalism in its modern form largely arose as a response to the liberal constitutional decisions of the Warren and Burger Courts. (2) Judges and scholars turned to history to explain why they thought that the Supreme Court had not only gotten the constitutional law wrong, but had also acted illegitimately in making its rulings. (3) These kinds of critiques culminated in the Reagan administration, the creation of the Federalist Society, and the mobilization of a conservative legal movement that embraced originalism as a core commitment. (4) As a result, many conservatives embrace originalist arguments, and the public often associates originalism with conservatives.

The more troubling issue is not whether the public associates originalism with conservatives or conservative politics, but whether originalism is a rationalization for conservatism. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically compelling independent of its connection to conservative politics, or is originalism simply a means to the end of achieving a set of constitutional doctrines that conservative politicians and interest groups prefer? Might originalism be justifiable independent of any reference or commitment to conservative constitutional law outcomes? Might it appeal to political liberals? Or must one already have committed to conservative politics to find any value in constitutional originalism?

This Essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are generally more likely than liberals to find originalism a normatively attractive approach to constitutional interpretation. This Essay considers the ways in which originalism both intersects with and diverges from conservatism. In doing so, it will consider originalism from two different perspectives that raise somewhat different issues. Part I will focus on originalism as a method of constitutional interpretation. Part II will focus on originalism as a political theory of judicial review and constitutional authority.

Before pursuing this inquiry, there are some issues worth mentioning but beyond the scope of this Essay. First, this Essay will not delve into the question of what originalism is. It will treat originalism with a broad brush, and not make fine distinctions among different schools of originalist thought. For present purposes of this Essay, the aim is to be catholic in this discussion of originalism, and any more particular points about originalism should be clear in context. (5) Second, this Essay will bracket the question of whether individual judges or particular political actors are, in fact, principled or consistent adherents to originalism. (6) It is an interesting empirical question whether a judge adheres to any principled theories of either constitutional interpretation or the judicial role, let alone whether a judge adheres to originalism in particular. (7) Scholars have long investigated, and struggled to answer, that empirical question. (8) Ultimately, however, the results of such an investigation would not help answer the question addressed herein. There is little doubt that originalism can be used to rationalize and legitimate conservative results; many other forms of constitutional argument and theorizing can also do so. But asserting such a general contention about the theory on the basis of some examples of flawed practice is no more compelling than arguing that "doctrinalism is a rationalization for conservatism" on the basis of examples of bad doctrinal arguments made in the service of reaching conservative results. Judicial practice is not the best guide for understanding the concepts, principles, and commitments of a constitutional theory.

1. ORIGINALISM AS AN INTERPRETIVE METHOD

   Originalism is a theory about interpretive method and argumentation for constitutional texts. In its various guises, originalism seeks to provide a framework of principles to guide judges and other constitutional interpreters in interpreting the constitutional text. Originalism tells us something about how best to understand the constitutional rules that control government. It indicates how obscure constitutional provisions should be clarified, and what kinds of arguments and evidence are appropriate to use in determining what a piece of text means.

   To what degree does originalism as a method of constitutional interpretation intersect with conservatism? Most notably, can we expect the Constitution, when interpreted in accord with originalist theory, to generate consistently politically "conservative" results? One might worry that originalism as an interpretive method is just a conservative stalking horse if one would expect the method to mechanically generate conservative outcomes on contested points of constitutional law. At the very least, distinguishing conservatism from originalism would be difficult if they were expected to produce equivalent results.

   There are good reasons to think that the overlap between conservatism and originalism is not perfect. Although the two do intersect, they can be teased apart, and originalism can be discussed, justified, and evaluated on its own terms. To see that separation, it makes sense to think about the ways in which conservatism might diverge from an originalist constitution, and the ways in which an originalist constitution might diverge from conservatism.

   "Conservatism" itself is quite various. The label is not always clearly used. (9) What political program is one talking about? What ideological movement is one talking about? What kinds of commitments are one talking about when one discusses conservatism, and what kinds of implications of originalism does one think it should be supporting? There are substantial ideological differences among contemporary conservative judges and Justices such as Clarence Thomas, Antonin Scalia, William Rehnquist, Richard Posner, and John Roberts. Likewise, there are also significant differences among conservative legal scholars such as Richard Epstein, Randy Barnett, Robert George, Steven Calabresi, John Yoo, Hadley Arkes, and Adrian Vermeule. Conservatism in politics embraces a spectrum of ideologies, ranging from libertarians to religious conservatives to national security hawks...