The origins and limits of originalism: a comparative study.

Author:Varol, Ozan O.


In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader debates in the United States about the origins, functioning, and limits of originalism.

This comparative study calls into question the existing theories in the American legal literature about why originalism thrives in certain nations. This Article suggests a new hypothesis that views support for originalism as a cultural, not legal, phenomenon: originalism blossoms in a nation when a political leader associated with the creation or revision of the nation's Constitution develops a cult of personality. The cult-of-personality hypothesis explains why originalism has thrived in nations such as Turkey and the United States, where the nation's founders have developed a strong cult of personality, but has failed to find a strong and sustained following in nations such as Australia, where the founders are held in no special reverence.

The Turkish case study is also instructive on the limits of originalism. Critics of originalism in the United States argue that originalism allows the dead hand of the past to rule an evolving society. In response to the critics, originalists note that the legislature has the option of amending the Constitution if its original meaning no longer comports with societal norms. But what if constitutional amendment were not an available option? The Turkish case study suggests that when the legislature lacks a plausible method--however difficult it may be--for amending the Constitution in times evolving societal norms, the continued use of originalism by the judiciary may motivate the legislature to place political constraints on the courts. In Turkey, the Constitutional Court's embrace of originalism but rejection of legislative attempts to amend the Constitution led to the adoption of a court-packing plan in September 2010.

TABLE OF CONTENTS I. INTRODUCTION II. ORIGINALISM: THE AMERICAN VERSION III. ORIGINALISM: THE TURKISH VERSION A. A Brief Overview of the Turkish Independence War and Mustafa Kemal Atatiirk's Reforms B. Originalist Provisions in the Current Turkish Constitution C. Originalist Decisions by the Turkish Constitutional Court 1. The First Constitutional Court Decision on the Islamic Headscarf a. Original Meaning b. Original Intent c. Original Expected Application d. Rejection of Foreign Law to Interpret the Constitution e. The Dissent's Analysis 2. The Second Constitutional Court Decision on the Islamic Headscarf D. Conclusions on Comparative Originalism IV. THE LIMITS OF ORIGINALISM V. CONCLUSION I. INTRODUCTION

A debate about originalism has swept the United States. The intricacies of originalism are discussed, not only in academic circles, (1) but also in popular discourse and popular media. (2) Most recently, a Saturday Night Live skit featured a news anchor speculating about the originalist understanding of the Second Amendment. (3) According to a recent poll, nearly half of Americans favor originalism. (4) It is astonishing that nearly half of Americans support a technical legal methodology for interpreting the Constitution. (5)

Does any other nation share this American fascination with originalism? The prevailing view is no: originalism is primarily an American obsession and the term comparative originalism is an oxymoron. For example, Jamal Greene has written about "the global rejection of American-style originalism" and argued that originalism is "an exceedingly unpopular view around the world." (6) Likewise, according to Michel Rosenfeld, "recourse to originalism is virtually nonexistent" in Europe. (7) Jill Lepore has echoed the same view by arguing that "originalism ... has no purchase anywhere but here" in the United States. (8)

This Article challenges these conventional views. Contrary to the popular belief that originalism is distinctively American, I argue that originalism has a foreign story. Analyzing the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) as a comparative case study, this Article contributes to a nascent academic debate on comparative originalism. (9)

Amidst the ongoing turmoil in the Arab world, the Republic of Turkey has gained newfound importance. As violent revolts unfold across nations such as Tunisia, Egypt, Libya, Syria, and Yemen, repressive leaders who have clung to power for decades are losing their grip, and autocracy is gradually giving way to democracy. Commentators have touted the Republic of Turkey as a role model for Arab nations that are craving a new democratic constitution. (10)

Though located in a region of the world with rising Islamic fundamentalism, Turkey remains a democratic and secular state. (11) Muslims make up 99.8 percent of Turkey's population, yet its strictly secular legal regime has rejected the implementation and application of Islamic laws. (12) Until the Republic's formation in 1923, Turkey was home to an Islamic fundamentalist regime under the Ottoman Empire, which relegated women to second-class status. (13) Only ten years after the downfall of the Empire, Turkish women obtained the right to vote--before women in Canada, France, and Italy--and two years thereafter, eighteen women were elected to the Turkish Parliament. (14) The once-fundamentalist and now-majority-Muslim Turkey gave the world its first female Supreme Court Justice and its first female fighter pilot, and Turkish voters elected a female Prime Minister, Tansu Ciller, in 1993. (15)

Recently, Turkey's economy has also been a resounding success story. Only ten years ago, the Turkish economy was in shambles, the unemployment rate was skyrocketing, and the inflation rate was "dizzyingly high." (16) Yet in 2010 and 2011, when the economies of surrounding European nations foundered, Turkey's economy flourished. In 2010, Turkey's economic growth was the fastest in Europe. (17) Likewise, in the first quarter of 2011, the Turkish economy grew by 11 percent, outstripping China and Argentina to become the fastest growing economy in the world. (18) The magnitude of Turkey's economic growth led commentators to label Turkey "Eurasia's rising tiger" (19) and "the China of Europe." (20)

Despite its political, legal, and economic importance in the Middle East, the Republic of Turkey and its Constitution have received little attention in the academic legal literature in the United States. (21) As David Fontana recently observed, leading law review articles on comparative law focus primarily on the same countries--Canada, New Zealand, Australia, the United Kingdom, South Africa, France, Germany, and India--and largely neglect others. (22) With the increasing globalization of constitutional law and attendant academic debates on constitutional convergence and divergence, (23) the little-studied constitutions of the world cannot remain ignored.

Drawing on neglected Turkish-language sources, this Article fills part of that academic void by presenting the first comparative analysis of the Turkish Constitutional Court's (Anayasa Mahkemesi) use of originalism to interpret the secularism provisions in the Turkish Constitution. To my knowledge, no scholar--in the United States or in Turkey--has analyzed the Turkish Constitution through an originalism lens. The Turkish case study sheds light on broader debates in the United States on the origins, functioning, and limits of originalism.

The scant literature on the Turkish Constitutional Court largely criticizes the Court as an activist institution that has wrongfully injected itself into the Turkish political process through unprincipled opinions. (24) The criticism focuses primarily on decisions by the Turkish Constitutional Court that struck down legislative attempts to allow students to wear Islamic headscarves in higher-education institutions. (25) These attempts, the Court held, violated provisions in the Turkish Constitution protecting the Republic's secular regime. (26)

In this Article, I analyze the Turkish Constitutional Court's controversial pro-secularism rulings as an American-style originalist interpretation of the secularism provisions in the Turkish Constitution. I argue that the Court has employed a combination of what American legal scholars call original intent, original meaning, and original expected application to interpret the Turkish Constitution. I further argue that the originalist methodology employed by the Court is not a mere interpretive preference of the Justices. Rather, unlike the U.S. Constitution, the Turkish Constitution expressly prescribes originalism by adopting, in a number of provisions, a specific form of secularism--that espoused by Mustafa Kemal Ataturk, the founder of the Turkish Republic. (27) An analogous Establishment Clause in the U.S. Constitution might state: "Congress shall make no law respecting an establishment of religion, as defined by the Jeffersonian view of a wall of separation between religion and state." In Turkey, as in the United States, the application of originalism has largely resulted in the rejection of transnational legal sources to interpret the national Constitution. Finally, the Turkish case study also shows that originalism does not inevitably produce substantively conservative results. Unlike in the United States, where originalism is generally associated with the American right, in Turkey, it is...

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