The Challenge of Originalism: Theories of Constitutional Interpretation.

• Author: Strang, Lee J.
• Position: Book review

THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION. Grant Huscroft (1) & Bradley W. Miller (2) eds. Cambridge, Cambridge University Press. 2011. Pp. ix + 305. $99.00 (cloth).

1. INTRODUCTION

   The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics.

   The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism's relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them.

   The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates.

   In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism's sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism's continuing and broad-based allure--the reason it presents a challenge--the Constitution's writtenness.

2. THE CHALLENGE OF ORIGINALISM

   1. ORIGINALISM'S SOPHISTICATION

      The Challenge of Originalism is primarily composed of essays that--among other things they do well--exhibit originalism's increasing sophistication. The first three chapters present a description of originalism, its origin and current state (pp. 12-41, 70-86), along with a defense of originalism (pp. 42-69). Chapters four and five provide a window into the newly-reinvigorated original intent originalism position (pp. 87-119), and chapter six displays the potential impact of the adoption of original meaning originalism in the context of Canadian constitutional law (pp. 120-46). Chapters seven through nine exemplify the role that constitutional settlement plays and can play in justifications of originalism (pp. 147-222). Lastly, chapters ten through twelve contain critiques--some sympathetic and some not--of originalism, especially its original meaning version (pp. 223-99).

      Both the originalists and their critics in The Challenge of Originalism powerfully deploy a wide variety of concepts, distinctions, and arguments. For this reason, The Challenge of Originalism is not solely for the newly initiated. (4) Lawrence Solum's essay, "What is Originalism? The Evolution of Contemporary Originalist Theory," is appropriately first in the collection because it provides a clear introduction to originalism's theoretical evolution over the past forty years (pp. 12-41). He first introduces readers to originalism's various incarnations: original intent, original understanding, original meaning, and original methods (pp. 16-26). Then, Solum describes the major intellectual moves made by (many) originalists to advance originalism: the distinction between original applications and original meaning; the distinction between constitutional interpretation and construction; and the fixation and contribution theses (pp. 23-26, 33-36). Solum's own most important additions are the fixation and contribution theses (pp. 33-36).

      The best example of originalism's increased intricacy, on display in The Challenge of Originalism, is the concept of constitutional construction. As described by Solum, construction "determin[es] the legal effect of the constitutional text" (p. 23). This concept is one of the key moves made by those originalists who advocate original meaning originalism, (5) and it is tied to a host of other concepts, such as legal underdeterminacy (6) (p. 23). For instance, Jeffrey Goldsworthy states that "interpretation is frequently unable to resolve interpretative problems raised by constitutions that ... are often ambiguous, vague, contradictory, insufficiently explicit, or even silent" (p. 60).

      Many of the "new originalists" place a lot of weight--perhaps too much (7)--on construction. For example, Keith Whittington argues that originalism can accommodate much of the "pluralism" in constitutional argumentation within the concept of construction (pp. 79, 82). When the Constitution's original meaning is underdetermined, according to Whittington, originalists may resort to the various "modalities" of constitutional argumentation, but in a manner "carefully disciplined by the overarching interpretative enterprise" (p. 79). Similarly, Goldsworthy claims that, within constitutional construction, "judges may be forced to act creatively and... consider[] matters such as consistency with general legal doctrines and principles, public policy, and justice" (p. 61). Indeed, Lawrence Solum labels original meaning originalists' embrace of construction "perhaps their most important move" (p. 23), and for two reasons: (1) originalism is more descriptively plausible when it "acknowledges ... the fact of constitutional underdeterminacy"; and (2) constitutional construction "open[s] the door for reconciliation between originalism and living constitutionalism" (8) (pp. 23-24).

      The Challenge of Originalism also provides a helpful introduction to the intricate intra-originalism debate over original intent and original meaning. Lawrence Solum, Jeffrey Goldsworthy, and Keith Whittington represent the original meaning camp. Goldsworthy directly argues in favor of original meaning originalism (pp. 46-51), and Solum and Whittington describe the benefits originalists reap from its adoption (pp. 1241, 70-86). For example, as noted, Solum suggests that original meaning originalism "opened the door for reconciliation between originalism and living constitutionalism" (p. 24).

      Original intent originalists, represented in The Challenge of Originalism by Larry Alexander and Stanley Fish, are direct in their support for original intent originalism and criticism of original meaning originalism (pp. 87-119). Although originalism is currently most prominently associated with original meaning, (9) advocates of original intent have continued to proffer strong cases for original intent and criticisms of original meaning. (10) Alexander's and Fish's contributions are no exception. Alexander, for instance, offers a host of arguments: original intent better fits how humans interpret other texts (pp. 87-89); the common reasons for adopting original meaning are unpersuasive (pp. 90-91); and original intent best fits interpretation of the actual document in the National Archives instead of another--possibly hypothetical--document (pp. 93-95).(11)

      Originalism's sophistication is also displayed in the complex exchanges between the originalists and their critics. Jeffrey Goldsworthy's contribution, "The Case for Originalism," is a clearly presented articulation of "[t]he best argument for originalism" (p. 42). Goldsworthy lists and then defends eight propositions, each of which builds on earlier ones (pp. 42-67). For example, Proposition 1 is: "A Constitution, like any other law, necessarily has a meaning that pre-exists judicial interpretation of it" (p. 44) (emphasis omitted). Goldsworthy responds to criticisms of this proposition from a number of sources, including prominent critic of originalism, Mitchell Berman (pp. 44-46).

      The Challenge of Originalism contains three critical essays, by Steven D. Smith, Mitchell N. Berman, and Brian H. Bix. Berman's essay is the most directly confrontational and, in Berman's exchanges with his interlocutors, the reader witnesses an impressive display of erudition (by both parties). For example, Berman and Solum both describe what Solum calls the "contribution thesis" of originalism--that the Constitution's original meaning contributes to constitutional law--and the nuanced distinction between the Constitution's semantic content and its legal content (pp. 32-38, 257 n.17).

      Another example occurs later in Berman's essay, where he offers a coherentist criticism of originalism. Rooted in the method of a reflective equilibrium, Berman argues that originalism cannot account for Americans' case-specific constitutional judgments, such as the wide-spread intuition that John McCain was eligible to be president despite the...