Two (more) problems with originalism.

• Author: Kramer, Larry D.

In this Essay, I wish to offer two simple points. The first is that originalist arguments misconstrue history, and the second is that there is no such thing as pragmatic originalism--to the contrary, originalism is by definition unpragmatic and at odds with legal pragmatism.

To understand why being an originalist works only if one ignores or misstates history, we must look briefly at the history of originalism. Some notion of originalism, understood as the theory that the Framers' or Founders' thoughts regarding the Constitution are relevant to constitutional interpretation, has been part of the legal landscape for a very long time, appearing as early as the 1790s. (1) But originalist constitutional interpretation as a discipline--that is, as a distinct subject with a distinct methodology--actually came into being only in the late nineteenth century. (2) Legal treatises and other works on the Constitution written before that time did not contain originalist theories of interpretation. The treatises discuss particular interpretations and offer descriptions of the proper or best understanding of particular clauses, but it took some time before people began to think about the problem of interpretation more broadly and systematically. For most of the nineteenth and early twentieth centuries, even as the problem of interpretation emerged, the main controversy concerned how much deference courts should give to legislatures. (3) The debate was about who should interpret, not how to interpret. When it came to the question of how to interpret the Constitution, there was general agreement on a kind of conventional approach that mixed different arguments without much systemization--something very much like the mix of arguments lawyers use when interpreting statutes or common law. (4) The Framers' intent was one of these arguments, used alongside text, precedent, and policy, but not superior to them. (5)

The idea of originalism as an exclusive theory, as the criterion for measuring constitutional decisions, emerged only in the 1970s and 1980s. (6) The theory first appeared as "original intent originalism," and it looked to what the fifty-five men who drafted the Constitution in Philadelphia intended when they framed the Constitution. (7) That originalism first emerged in this guise is hardly surprising, given that the most readily available evidence about the origins of the Constitution's provisions consisted of notes from the Constitutional Convention collected in a neat four-volume set by Max Farrand. (8) Consequently, a great deal of early originalist work asked what the Framers thought they were doing when they wrote this or that clause of the Constitution.

Of course, relying on such evidence was immediately subjected to a strong critique that I think everybody is probably familiar with. The sparseness of the evidence was said to leave every question indeterminate. (9) Some people found this sort of argument persuasive, others did not. But a more powerful critique of original intent soon emerged, this one arguing that relying on Framers' intent could not be justified as a normative matter. (10) The intent of the drafters in Philadelphia does not matter, this critique argued, because the Constitutional Convention had no lawmaking authority. The underlying premise of originalism is one of positive law: the Constitution is a species of legislation, authoritative only because and insofar as it was enacted by an authoritative lawmaker. As such, the authoritative intent is that of the people who had the power to make it law, not of the people who drafted the Constitution in Philadelphia. (11) Looking to their intent is like giving authority to a speech writer for the President. It is like giving authoritative weight to the intent of the lobbyists who drafted a bill for Congress, as opposed to the Congress that actually adopted it.

This was a pretty devastating critique, and it required a response. So originalism changed and reemerged in a second form, which we can call "original understanding originalism." Unsurprisingly, given the critique, originalism in its new guise evolved to focus mainly on the views of the ratifiers. (12) It was, perhaps, more than serendipity that this second form of originalism emerged just as extensive material on ratification became easily available to legal scholars through the publication of the multi-volume Documentary History of the Ratification of the Constitution. (13) Suddenly everybody could be an historian of ratification, because a vast reserve of primary sources were available in neatly bound volumes.

This development made sense as a response to the critique of original intent originalism. But originalism in this second guise soon ran into a set of critiques similar to those that its first form encountered. The indeterminacy argument became stronger, because indeterminacy of intent was magnified by the expansion of the number of individuals whose intent was to be considered...