Consensus or diversity among originalists?

January 27, 2014

I think co-blogger Will is right that originalism per se doesn’t dictate specific solutions to the problems I raised last week.  In particular, I don’t think that believe that “interpreting the Constitution according to its original meaning” should be interpreted to require that the Constitution be interpreted clause-by-clause without regard to whether the broader scheme set up by the Framers is lost in the process (for example,  when the prior misinterpretation of one clause disrupts the constitutional balance in ways that might affect how other clauses should be interpreted).

I do think, however, that normative originalism as practiced by its leading American academic advocates generally exclusively involves clause-by-clause interpretation.  By contrast, scholars who try to engage in holistic analysis, perhaps like my colleague Michael Greve, are often deemed to be “not really originalists.”

Will implicitly acknowledges as much in the comments to his post, where he suggests that “the kind of holistic analysis [I'd] recommend is done by [Supreme Court] majorities that are not purely originalist, ” as in some of the Court’s federalism decisions.  In practice, it seems to me that holistic analysis, no matter how hard the analyst tries to be true to the Constitution’s original plan, is currently often not deemed to be “purely originalist.”

As an aside, this relates to a debate I’ve had with some conservative originalists as to whether the Supreme Court’s pre-New Deal due process jurisprudence was “originalist.”  They claim it wasn’t, because the Justices didn’t use historical source to try to ascertain the specific original meaning of the Due Process Clause.  My response is that this sort of originalism is a relatively modern innovation, and one can’t anachronistically expect the Justices to have adopted a theory of originalism that had not yet been invented. But the Justices did believe that they were interpreting the Fourteenth Amendment according to its original meaning, including its background in natural rights and anti-class legislation theory.  This may by modern standards have been “bad originalism,” but it was orignalism nevertheless.  Update: As I noted in Rehabilitating Lochner, “With the notable exception of Princeton political scientist Edward Corwin [who, ironically, opposed originalism], through the mid-1920s Progressive critics of the Supreme Court devoted little effort to arguing that the Court had perverted the intent of the Framers of the Fourteenth Amendment. Progressives instead lambasted the Court for engaging in blind, inflexible originalism and relying on abstract notions of rights. (e.g., Louis D. Brandeis, The Living Law, 10 Ill. L. Rev. 463, 469 (1916); Roscoe Pound, “Liberty of Contract”, 18 Yale L.J. 454, 464 (1909)). Felix Frankfurter, for example, criticized the courts for relying on “eighteenth-century conceptions of ‘liberty and equality.’”

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA. He is the author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011); You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003);
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