POLITICS JANUARY 14, 2011
When members of the House read aloud the Constitution at the start of the legislative session last week, the event was widely regarded as a political stunt. Commentators mocked the House GOP for squabbling over the procedure for reading the text and for skipping passages that had been superseded by amendment—although it’s not clear what’s wrong with skipping provisions that are no longer in effect. But if the reading of the Constitution was a stunt, it is nonetheless remarkable for what it says about the rapid political rise of the once-obscure, ivory-tower theory of originalism.
Originalists believe that the Constitution—the set of rules that structure and limit government—has the meaning that was ascribed to the original document by those who drafted and ratified it, as modified by the various amendments, as understood by those who drafted and ratified them. The contrary view is that the Constitution evolves with the times. Judges and elected officials interpret and reinterpret it in light of their own changing values, and these interpretations pile up and form a body of political and judicial precedent that certainly bears some resemblance to the original understanding, but diverges considerably from it. Non-originalists dominated the judiciary for decades and still dominate the academy. Although originalist ideas have floated around since the Founding, the modern theory was produced by a small group of mostly marginalized (conservative) academics, whose ideas were rarely taken seriously by the most influential (liberal) scholars in the top law schools.
And yet today originalism has made headway in the courts and ascended in the political scene, to the point where the leaders of the House of Representatives spent their first hours in session paying homage to it. What accounts for this turn of events? Originalists would tell you that the answer is the force of their arguments—but actually, the answer has more to do with politics than anything else.
It seems like common sense that the “Constitution” must mean just what its drafters understood it to mean or (in another formulation) what citizens who ratified it understood it to mean. But the drafters and ratifiers of the Constitution understood that a constitution must change with the times: the structure of government that makes sense in 1780s will not make sense decades and centuries later. Otherwise, the dead hand of the past will constrain future generations or (more likely) future generations will slough off the old Constitution, generating political instability, just as the Founding generation repudiated the Articles of Confederation.
The drafters attempted to anticipate constitutional change by providing for amendment in Article V of the Constitution, but they miscalculated and made amendment too difficult, requiring large supermajorities in multiple institutions. Today, virtually all national and state constitutions are significantly easier to amend than the U.S. Constitution. But U.S. amendment procedures became entrenched before anyone realized their flaws, and so the task of updating the Constitution was taken on by the courts, which could advance “interpretations” of the Constitution that were de facto revisions.
This unique system of constitutional amendment created problems of its own. Supreme Court justices are not elected, therefore lack democratic legitimacy, and indeed probably lack the ability and the motive to update the Constitution in a manner that consistently serves the interests of the public. Modern-day originalism developed in reaction to the Warren Court, which in the 1950s and 1960s “interpreted” the Constitution so that it included new rights to privacy, racial equality, religious dissent, and judicial process. These liberal decisions outraged conservatives of all stripes—Southerners who saw their way of life under siege, religious people who feared the secular forces of modernity, businesspeople who feared regulation and interference with property rights, populists opposed to rule by elites, and so on.
Originalists argued (plausibly) that Warren Court justices imposed their ideological preferences on the Constitution but (implausibly) that the only legitimate method for interpreting the Constitution relies on originalism. The problem with that view is that many constitutional precedents that lack an originalist pedigree (notably, Brown v. Board of Education, which desegregated public schools) have unshakeable public support. It was partly his commitment to originalism (and partly his beard, it is often said) that sank Robert Bork’s nomination to the Supreme Court in 1987. Updating the Constitution turns out to be a necessary function of the Supreme Court; however often justices allow their ideological views to influence their decisions, the public seems overall to be happy with this process.
And yet originalism has made significant inroads. The left wing of the Supreme Court long resisted originalism but has allowed itself to be sucked into it. Most notably, the 2008 gun control case, District of Columbia v. Heller, featured warring constitutional histories about gun rights from the majority and the dissent. Meanwhile, many liberal law professors have thrown in the towel, endorsing originalism or a version of it but arguing that the original sources indicate liberal rather than conservative constitutional norms.
There are two reasons that this doctrine has become so popular. One is that, superficially, originalism seems simple, commonsense, and nonpartisan: an antidote to the politicization of the judiciary and the judicial appointments process. The idea that judges implement their political preferences is actually not new (people were complaining about it in the early nineteenth century), but the controversy has reached a fever pitch. Conservatives still complain about the Warren Court precedents, and the post-Warren Court case of Roe v. Wade which despite all of their efforts remains good law; and they are alarmed by recent hints from the middle-to-left wing of the Court that it will use foreign and international law to interpret the constitution—in a way that, so far, has curtailed the death penalty and advanced gay rights. Liberals have seen the Court implement conservative outcomes in a range of areas they care about—striking down gun control laws, school desegregation plans, affirmative action policies, and campaign finance reform. So the Court seems politicized to people on both sides of the political spectrum, and originalism increasingly presents itself as an attractive, neutral-seeming method for getting the Court back on track.
Second, originalism was an attractive response to the activism of the Obama administration, which went too far, too fast, for the large portion of the public that distrusts government, with its plans to stimulate and regulate the economy. Many people convinced themselves that Obama’s legislation did not just reflect policies that Republicans rejected, but that it could only have been enacted in violation of the rules of the game—the Constitution. This was a shrewd position for the Republican Party to embrace; if it did not have the votes to block the Democratic majority, it could still argue that the majority acts unconstitutionally. The election supported that view, as erstwhile supporters of Obama voted against Democrats or sat on their hands because of their uneasiness about the direction of government.
This is all well and good in the short term, but in the long term, the substantive problems with this doctrine will reduce its utility as a political tool. The problem with originalism is that, however useful it may be as a form of criticism, it cannot support a positive program. During the 2010 election, Americans may have expressed anxiety about the size of government, but in general Americans adore big government and do not want to see it repudiated in the name of some abstract idea. Every political challenge to the New Deal administrative state has gone down in flames, and today Americans look to the federal government to protect them from terrorists, financial scams, economic downturns, environmental degradation, educational failure, poverty and sickness in old age, natural disasters, and foreign competition. As a governing doctrine, the small-government ethos of originalism does not have a constituency.
And the public may soon realize that originalism is unlikely to end the politicization of the judiciary. As the Heller case showed, originalism just displaces political disputes among judges into a different idiom. Even as discussion about the original meaning of the Constitution becomes more common on the Court, the left/right division between Supreme Court justices will be plain as ever. This is especially so because originalism unsettles precedent, permitting both liberal and conservative justices to disregard earlier decisions that rub them the wrong way.
In addition, as Republicans gain more power, their commitment to originalism will look ever more inconsistent. Institutional commitments in politics don’t run very deep. Republicans already championed federal marriage legislation, even though the Constitution gives Congress no power to regulate family relations; and during the Bush administration, constitutional constraints on executive power were forgotten. This will surely happen again the next time the Republicans take control of the government, and they can only hope that their earlier blandishments about the original understanding of the Constitution will have been forgotten.
Eric A. Posner is a professor at the University of Chicago Law School.