First, the critiques of originalism had done real intellectual damage. At least within the academy, the damage was so severe that many liberal constitutional theorists were confidently pronouncing originalism dead. Second, conservative lawyers, judges, and legal theorists were beginning to realize their own power and were looking for rhetorical and theoretical justifications for using it proactively to advance conservative interests.
It requires judges to uphold the original Constitution—nothing more, but also nothing less. Together, these conditions created a powerful demand for a new approach to constitutional decisionmaking that could both withstand the critiques leveled at early versions of originalism and also justify greater judicial activism on behalf of conservative causes. Over the next ten years or so, the New Originalism arose to meet this demand.
It did not happen overnight. Randy Barnett and Keith Whittington were early contributors, developing original public meaning, the argument from writtenness, and the interpretation-construction distinction as linchpins of the new approach. See Keith E. Whittington, Constitutional Construction: Divided Power and Constitutional Meaning 6 drawing a distinction between interpretation and construction ; Keith E.
Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 50—61 arguing that originalism follows from the writtenness of the U.
Constitution ; Barnett, supra note 32, at —36 explaining original public meaning, drawing the interpretation-construction distinction, and arguing that originalism follows from a commitment to written constitutionalism.
If the original intentions of the framers and ratifiers were inscrutable or impossible to aggregate, original public meaning was an objective linguistic fact. If the founders could not claim legitimate democratic authority to rule contemporary Americans, the commitment of those Americans to a written constitution as a constraint on government power could supply an alternative justification for originalism. See Barnett, supra note 32, at If original meaning could not determinately resolve all constitutional controversies, constitutional construction could supplement constitutional interpretation to fill in the gaps.
See generally Lawrence B. The initial appeal of these innovations was theoretical and defensive. They enabled originalists to respond to some of the strongest arguments leveled against originalism by the previous generation of liberal constitutional theorists.
In time, however, other advantages presented themselves that helped to consolidate this evolution and strongly influenced the future course of its development.
Emphasis on objective public meaning, rather than the subjective intentions or expectations of the framers and ratifiers, gave originalists a plausible basis for embracing widely celebrated decisions like Brown and Loving v.
Virginia [38] [38]. Loving v. Virginia, U. See generally Michael W. Emphasis on original public meaning also enabled originalists to argue that the abstract language of the Privileges or Immunities Clause warranted judicial protection of a host of economic liberties, either as a matter of constitutional interpretation or construction.
Here was the beginning of originalism as a sword, an offensive justification for judges to advance conservative values against a hostile democratic process. Further offensive potential was implicit in the argument from writtenness—the distinction between judicial restraint and constitutional constraint. The point of a written constitution, according to New Originalists, was to constrain the power of government, including but not limited to the power of judges.
If other government actors exceeded the constraints imposed by that Constitution, it was the duty of judges acting under it to enforce those constraints even against more democratically accountable officials and institutions. In such circumstances, judicial restraint—defined as judicial forbearance—was not cause for celebration; it was an abdication of duty.
Only quite recently have originalists begun to elaborate on this argument explicitly, and its terms are still evolving. Mason L. Whatever term the literature settles on, this principle has been latent in the New Originalism for some time. It played an important animating role in both Heller v. District of Columbia [44] [44]. District of Columbia v. Heller, U. Sebelius , [45] [45]. Sebelius, U. Comstock, U. Raich, U. More than any nice theoretical distinction, it is this celebration of conservative judicial activism in an era of conservative ascendancy on the federal bench that distinguishes the New Originalism from the Old.
See generally Jack M. Even Roe v. Wade , [48] [48]. Roe v. Wade, U. See Jack M. Balkin, Abortion and Original Meaning , 24 Const. Having thus defined originalism nearly out of existence, Balkin declares himself a card-carrying member of the club.
Most liberal constitutional theorists have not gone so far. Or there may be earlier cases that point in different directions, suggesting opposite outcomes in the case before the judge.
Then the judge has to decide what to do. At that point-when the precedents are not clear-a variety of technical issues can enter into the picture. But often, when the precedents are not clear, the judge will decide the case before her on the basis of her views about which decision will be more fair or is more in keeping with good social policy. This is a well-established aspect of the common law: there is a legitimate role for judgments about things like fairness and social policy.
It is important not to exaggerate nor to understate how large a role these kinds of judgments play in a common law system. In any well-functioning legal system, most potential cases do not even get to court, because the law is so clear that people do not dispute it, and that is true of common law systems, too. Even in the small minority of cases in which the law is disputed, the correct answer will sometimes be clear. And-perhaps the most important point-even when the outcome is not clear, and arguments about fairness or good policy come into play, the precedents will limit the possible outcomes that a judge can reach.
This description might seem to make the common law a vague and open-ended system that leaves too much up for grabs-precisely the kinds of criticisms that people make of the idea of a living constitution. When, exactly, can a case be distinguished from an earlier precedent? What are the rules for deciding between conflicting precedents? What are the rules about overturning precedents? For the most part, there are no clear, definitive rules in a common law system.
The common law is not algorithmic. The better way to think about the common law is that it is governed by a set of attitudes: attitudes of humility and cautious empiricism. These attitudes, taken together, make up a kind of ideology of the common law. It's an ideology that was systematically elaborated by some of the great common law judges of early modern England.
The most famous exponent of this ideology was the British statesman Edmund Burke, who wrote in the late eighteenth century. Burke, a classic conservative, wrote about politics and society generally, not specifically about the law. But he took the common law as his model for how society at large should change, and he explained the underpinnings of that view.
The first attitude at the basis of the common law is humility about the power of individual human reason. It is a bad idea to try to resolve a problem on your own, without referring to the collected wisdom of other people who have tried to solve the same problem. That is why it makes sense to follow precedent, especially if the precedents are clear and have been established for a long time.
The second attitude is an inclination to ask "what's worked," instead of "what makes sense in theory. If a practice or an institution has survived and seems to work well, that is a good reason to preserve it; that practice probably embodies a kind of rough common sense, based in experience, that cannot be captured in theoretical abstractions.
To quote Burke again: "The science of government being. Originalism's trump card-the principal reason it is taken seriously, despite its manifold and repeatedly-identified weaknesses-is the seeming lack of a plausible opponent. But if the living Constitution is a common law Constitution, then originalism can no longer claim to be the only game in town. The common law has been around for centuries. In non-constitutional areas like torts, contracts, and property, the common law has limited judges' discretion and guided the behavior of individuals.
And while the common law does not always provide crystal-clear answers, it is false to say that a common law system, based on precedent, is endlessly manipulable. Originalists, by contrast, do not have an answer to Thomas Jefferson's famous question: why should we allow people who lived long ago, in a different world, to decide fundamental questions about our government and society today?
Originalists do not draw on the accumulated wisdom of previous generations in the way that the common law does. For an originalist, the command was issued when a provision became part of the Constitution, and our unequivocal obligation is to follow that command. But why? It is one thing to be commanded by a legislature we elected last year.
It is quite another to be commanded by people who assembled in the late eighteenth century. Originalism is different. An originalist claims to be following orders. An originalist cannot be influenced by his or her own judgments about fairness or social policy-to allow that kind of influence is, for an originalist, a lawless act of usurpation.
An originalist has to insist that she is just enforcing the original understanding of the Second Amendment, or the Free Exercise Clause of the First Amendment, and that her own views about gun control or religious liberty have nothing whatever to do with her decision.
That is an invitation to be disingenuous. Originalism, as applied to the controversial provisions of our Constitution, is shot through with indeterminacy-resulting from, among other things, the problems of ascertaining the original understandings and of applying those understandings to the modern world once they've been ascertained. In the face of that indeterminacy, it will be difficult for any judge to sideline his or her strongly held views about the underlying issue.
But originalism forbids the judge from putting those views on the table and openly defending them. Ironically, perhaps, agreeing to be bound by a contract is empowering. The same form of intergenerational lawmaking occurs in constitutional law. There are some problems that are just so big that no one generation can or should have to deal with them on its own.
Thus, for example, the U. The generations that won those wars could not have won them without borrowing from the future. And it made sense to borrow from future generations because those very future citizens would themselves benefit from winning the wars in question.
The Constitution similarly allows us, in exchange for giving up our freedom to scrap it, the security of being bound by some pretty sensible rules that have persisted over two hundred years. Constitutional originalism thus acknowledges that the present has obligations both to the past and to the future, and that just as every individual is not an island all by himself, every generation is not an island all by itself.
We honor our parents when we give their laws a presumption of validity while reserving the means to change them in a consensus-based way. Promote the Rule of Law— A seventh purpose of the Constitution is to promote the rule of law and not of individual men or women.
Ultimately, We the Sovereign People enforce the Constitution over the six-year electoral cycle. Promote Democracy— An eighth purpose of the Constitution is to promote democracy. As much as they believed in and talked about checks and balances, the Framers were determined to set up a democratic system of government and not an English-style monarchy or aristocracy.
The Constitution provides for popular ratification and for popular election of representatives, senators, and, indirectly, Presidents. Judges, whose selection is removed from the people, are picked by the President and Senate and thus indirectly by the people.
Even the six-year electoral cycle, described above as a series of biannual tracking polls, is an effort to discern what the people really want, as opposed to what they might impulsively vote for in one election. Certainty from Getting Things in Writing— A ninth purpose of the Constitution is to make it easier to find the law by getting it down in writing.
The Framers were skeptical about the ability of people to agree on unwritten constitutional commands, and this skepticism seems well warranted. Lead to Good Consequences— The tenth and final purpose of the Constitution is aspirational and consequential. The Constitution itself describes its purposes aspirationally and consequentially in the Preamble.
The Framers say the purposes of the Constitution include forming a more perfect Union, establishing Justice, ensuring domestic tranquility, providing for the common defense, and securing the Blessings of Liberty to ourselves and our posterity. The Constitution aspires to promote these ends so as to produce good consequences, and the Preamble describes the promotion of these ends as being a purpose of the document. Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results.
Originalism is a theory focused on process, not on substance. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written.
Whether that means allowing protesters to burn the American flag the First Amendment ; prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant the Fourth Amendment ; or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case the Sixth Amendment. Like United States v. Or Sessions v. Or Carpenter v. I could go on and on. So could any originalist judge. Look, for example, at Dred Scott and Kore matsu.
A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories.
In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution. And often enough it may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency. After all, passing majorities will applaud judicial efforts to follow their wishes.
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