Are originalist constitutional theories principled, or are they rationalizations for conservatism?

AuthorFallon, Richard H., Jr.
PositionTwenty-Ninth Annual Federalist Society National Student Symposium: Originalism

My topic is whether originalism, and in particular the form of originalism that might be thought to constitute Originalism 2.0, is "a rationalization for conservatism, or a principled theory of interpretation." (1) This question includes at least three parts: First, what is originalism? Second, are particular varieties of originalism capable of being, or likely to be, applied in a principled way? Third, are most or all varieties of originalism "rationalization[s] for conservatism"?

My answer to the first of these questions frames my answers to the second and third. Although it is customary to speak of originalism as a single constitutional theory, even a cursory review of recent scholarship reveals that the range of originalist theories has grown startlingly broad and diverse and is becoming more so all the time. (2) So great are the differences among originalist theories that I question the premise that we can talk meaningfully about Originalism 2.0 and whether it is a principled theory or a rationalization for conservatism. It would be more accurate to say that there are multitudinous rivals for the title of Originalism 2.0 and that whether these competitors are principled can only be answered on a theory-by-theory basis.

When assessment proceeds accordingly, a striking feature of many originalists' theories is their vagueness or indeterminacy. The vagueness of many originalist theories bears vitally on the second question, involving whether originalist theories are likely to be applied in a principled way. As a generalization, versions of originalism that are not well specified allow more opportunities for ideologically motivated manipulation to achieve conservative results than would more fully specified versions. By itself, this conclusion is hardly surprising. What may be less obvious is that originalist theories that are rigorously defined in advance, thus to avoid case-by-case inconsistencies in application, may be more prone to generate disturbing or even calamitous results than are originalist theories that leave more room for discretionary judgment. Originalists may therefore have good reason not to want to bind themselves too rigidly to a methodological mast.

With regard to the third question, however, the more methodological discretion that originalist theories authorize, and the more that practitioners of those theories exercise their discretionary judgment to justify substantively conservative conclusions, the better the charge that originalist theories are "rationalization[s] for conservatism" appears to fit. Suspicions of rationalization are also in order insofar as originalists maintain that the case for adopting an originalist theory is entirely independent of the theory's conservative valence. (3)

  1. WHAT IS ORIGINALISM?

    For a long time, self-identified originalists and non-originalists alike have tended to speak as if originalism were a single theory. (4) Recent scholarship has revealed the fallacy of this assumption. (5) There are multiple strands of originalism, with additional versions proliferating as rapidly as law reviews can publish them. The various originalist theories differ from each other along at least four dimensions, involving: (1) the historical object or phenomenon that originalist judges or scholars should seek to identify--the Framers' intent, the original understanding of a specified group of lawmakers, or the original public meaning of constitutional language; (6) (2) the conclusiveness of originally expected applications of constitutional language in fixing the Framers' intent, the original understanding, or the original public meaning; (7) (3) the degree of determinacy with which historical sources can be expected to fix historical meaning and the role of judges in cases of relative indeterminacy; (8) and (4) the circumstances, if any, under which non-historical considerations such as stare decisis, prudence, and apprehensions of normative desirability can justify constitutional decisions other than those that a purely historical criterion of constitutional meaning would mandate. (9)

    The Historical Phenomenon To Be Identified

    Proponents of originalism agree that historical facts at the time of a constitutional provision's adoption normally determine its meaning. (10) They disagree, however, about what the precise object of originalist historical inquiry ought to be. (11)

    The founders of the modern originalist movement characteristically maintained that constitutional interpretation should reflect the intent of the Framers. (12) Although most "original intent" theories would fit better under the heading of Originalism 1.0 than Originalism 2.0, (13) at least a few originalists still affirm the centrality of some notion of original intent. (14)

    Other originalists have argued that originalist inquiry should focus on the original understanding, or the originally understood meaning, of constitutional language, especially among the members of the state ratifying conventions that actually adopted the Constitution as law. (15) What matters for originalists who take this position is not what the Framers intended, but what a broader, more public audience understood their words to mean. (16)

    A third group of originalists--probably including many who would embrace the notion that Originalism 2.0 has succeeded Originalism 1.0--maintains that constitutional interpreters should not seek to identify how constitutional language was understood by the members of a group of Framers or ratifiers, who may have disagreed among themselves or had no pertinent understanding regarding some points, but should look instead at the original public meaning of constitutional language. (17) Leading theorists equate the original public meaning with the understanding of a hypothetical reasonable observer, skilled in contemporary grammar and syntax and fully informed about all pertinent history. (18) According to Professors McGinnis and Rappaport, for example, "the focus of originalism should be on how a reasonable person at the time of the Constitution's adoption would have [understood] its words and thought they should be interpreted" even in the case of provisions that "may have seemed ambiguous." (19) Professor Lawson further specifies that objective-public-meaning originalism requires "a hypothetical inquiry that asks how a fully informed public audience, knowing all that there is to know about the Constitution and the surrounding world, would understand a particular provision." (20)

    1. The Conclusiveness of Originally Expected Applications in Fixing Meaning

      Besides disagreeing about whether the Framers' intent, the original understanding of a limited group, or the original public meaning should be the object of originalist inquiry, originalists further diverge about the pertinence of originally expected applications of constitutional language in resolving their historical questions. (21) Brown v. Board of Education (22) illustrates the potential distinction between anticipated applications of constitutional language and the Framers' intent, the original understanding, or the original public meaning. Partly as a result, Brown constitutes a flash point for disagreement among originalists. (23)

      Nearly all constitutional historians agree that the Framers and ratifiers of the Fourteenth Amendment did not intend it to ban race-based school segregation, nor anticipate that the Amendment's provisions would have that effect. (24) Nor did most reasonable and informed members of the public at the time of the Fourteenth Amendment's ratification expect that the Equal Protection Clause would or should be applied to prohibit one-race public schools. (25) Some originalist theories would treat these historical facts as conclusively determining that the Fourteenth Amendment does not prohibit the states from maintaining racially discriminatory public schools. (26)

      According to other originalist theories, however, originally intended applications or original understandings of a constitutional provision's applications are evidence, but not necessarily decisive evidence, of the original intent, original understanding, or original public meaning. (27) For originalists who focus on the Framers' intent, some would say that intent can be stated at varying levels of generality. (28) Although the Framers did not specifically intend to ban race-based discrimination in public education, perhaps they did intend to confer the kinds of protections against state discrimination that are necessary to grant equal protection in an objective sense. If the prohibition of school segregation is objectively necessary to give racial minorities the equal protection of the laws, then some originalists would say the result in Brown v. Board of Education is consistent with the intent of the Fourteenth Amendment's Framers. (29)

      Some originalists who emphasize the original understanding or the original public meaning of constitutional language authorize a similar, though not identical, distinction between historical understandings concerning how language would be applied and the language's "semantic" intention. (30) "The linguistic meaning of a text is one thing, and expectations about the application of that meaning ... are a different thing," Professor Solum explains. (31) When this distinction is drawn, it becomes possible to maintain that even if most people in 1868 erroneously believed that race discrimination in public education was consistent with equal protection, widespread error about the appropriate application of the Equal Protection Clause does not determine the Clause's original meaning. (32) Professor Steven Calabresi and Sarah Agudo thus write:

      The [F]ramers and ratifiers of the Fourteenth Amendment may well not have understood that the Amendment outlawed segregation in education, but arguably that is precisely what it did. Obviously, it is the formal text of the Fourteenth Amendment that governs, and not the...

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