Pre-'originalism'.

• Author: Toler, Lorianne Updike
• Position: Introduction through I. Originalism and Non-Originalism in Theory, p. 277-298

INTRODUCTION I. ORIGINALISM AND NON-ORIGINALISM IN THEORY A. The Originalists 1. Philosophical Origins of Originalism 2. Variants of Originalism a. Intentionalism b. Original Public Meaning B. The Non-Originalists II. ORIGINALISM AND NON-ORIGINALISM IN PRACTICE A. The Court's Non-Intentionalism: The First Hundred Years B. The Non-Intentionalist Court: The Second Hundred Years CONCLUSION INTRODUCTION

June 26, 2008 heralded an important new era for the use of historical sources in constitutional interpretation. It was the day the United States Supreme Court announced its opinion in

District of Columbia v. Heller, (1) the first occasion since the Bill of Rights' ratification in 1791 that the Court had taken to interpret the protections provided in the Second Amendment: (2)

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (3) The Court was to decide for the first time whether the Amendment protected a private right to possess personal weapons for self-defense or instead protected state militias from federal disarmament. Heller was thus a rare case of "constitutional first impression," wherein the Court assumes the responsibility to interpret a discrete text of the federal Constitution--be it an entire amendment, a clause, an identifiable phrase within a clause, or even a single word--for the first time. Such cases are the Halley's Comets of jurisprudence, occurring in modern times perhaps once or twice during a Justice's tenure on the Court. The last such case occurred in 1993, and only four such cases had been decided in the twenty-five years before Heller. (4)

Heller is remarkable for much more than its singular rarity, however, or even the excitement that naturally attends any discussion of the topic of firearms. Heller is remarkable because of how it was decided. Between Justice Scalia's majority opinion and Justice Stevens's dissent, Heller contains perhaps the most extensive and rigorous historical analysis in any constitutional opinion in the Court's history. (5) Never had the Court considered in such depth the question of how historical sources should be used in constitutional interpretation. (6)

Heller's methodological debate is significant because of its context. It had been preceded by thirty years of debate over Originalism--whether and to what extent founding history can appropriately be used in constitutional interpretation. Heller thus represents an interesting layer in this meta-discussion--a kind of official recognition and culmination of the debate by the highest legal authority. The discussion over history's relevance thus placed Heller at the fulcrum of the debate between adherents to variations on the Originalist theme and those that reject the theory entirely.

The debate begs the question of historical legitimacy. Predictably, all sides in the debate have tried to claim that their preferred method of analysis has a stronger pedigree in the history of the Supreme Court's constitutional jurisprudence. For instance, certain non-Originalists have used cases like Chisholm v. Georgia to illustrate that the early Court did not adhere to anything like modern-day Originalism. (7) Justice James Wilson, writing seriatim, determined that states did not retain sovereign immunity under the Constitution, and could be subjected to suit by individuals from other states. (8) This outcome required the Court to ignore evidence that at least some of the Framers (ironically including even Wilson himself) and Ratifiers intended to preserve state sovereign immunity within the Constitution. (9) Reference to such evidence within the historical record might have prevented Wilson and the Court from permitting Georgia to be subjected to suit. (10) In failing to grapple with this evidence, Wilson did not adhere to modern Originalist methodologies. Certain other Originalists, on the other hand, tend to focus on Gibbons v. Ogden, wherein the Marshall Court endorsed something akin to what is now described as "Original Public Meaning," a particular variant of Originalism:

[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. (11) Similarly, scholars from both sides have endlessly debated whether Chief Justice Marshall's famous statement from McCulloch v. Maryland that the Constitution was "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs," shows that Marshall either advocated judicial minimalism or some version of Living Constitutionalism. (12)

However, this scholarship has largely been selective--solely serving to support each scholar's preferred method of constitutional inquiry--and episodic, focusing narrowly on a few specific examples, whether from the Court itself, or from other branches' acts of constitutional interpretation. Furthermore, those who have studied anecdotal evidence have largely taken Justices' claims at face value, without discovering whether the Justices' claimed and practiced methodology align. No one to date has engaged in a comprehensive analysis of the Court's entire body of constitutional jurisprudence to discover and compare the claimed versus true constitutional interpretive methodology of the Court. (13) As a result, these efforts have failed to provide any truly satisfactory answers. Indeed, the Marshall Court's ability to be characterized as either Originalist or Living Constitutionalist, depending upon the selective choice of case citations, demonstrates the inadequacy of such endeavors.

Given the faults in previous attempts to examine the topic, the time is ripe to analyze competing claims of historical legitimacy critically and dispassionately--using pre-Roberts Court cases of constitutional first impression as a guide--to determine how the Supreme Court approached the use of history in constitutional interpretation before "Originalism" was applied in more modern cases like Heller.

This Article undertakes to analyze the historical pedigree of various modes of constitutional interpretation using a systematized, quantitative, and qualitative analysis of the Supreme Court's cases of constitutional first impression to answer a series of questions: How do the theories of Originalism and Non-Originalism compare to the Supreme Court's pre-Heller historicalism? (We use historicalism to mean, in a broad sense, all forms of historical analysis and inquiry in judicial interpretation. In a field where many terms have...