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  • The Truth about Originalism
  • Whitley Kaufman

Despite its relatively small number of advocates, the theory of constitutional interpretation known as “Originalism” continues to enjoy an out-sized influence in the United States. Originalists themselves like to say that “we are all Originalists now,” and claim that their theory has become the obvious, unstated position of all responsible lawyers, judges, and politicians. Indeed, they say, how could anyone deny the truth of Originalism, if all it means is that we as judges, lawyers, and citizens are bound to follow the text of the Constitution as the supreme law of the land, rather than just make up the law to suit our present preferences? Nor are there, its advocates say, any substantial competing theories of constitutional interpretation; the leading alternative, the idea of a “Living Constitution” is more a metaphor than a systematic theory. So has Originalism become the orthodoxy of Constitutionalism? To the contrary, as we will show here, it is not even a plausible theory of constitutional interpretation at all.

Consider some of the radical political conclusions drawn by Originalists: the Obama health care plan is unconstitutional, the majority of the New Deal is illegitimate, the Endangered Species Act and most environmental legislation should be overturned, many gun control laws are invalid, and, of course, the Roe v. Wade, 410 U.S. 113 (1973), right to abortion is illegimate. The problem is not the fact that these conclusions are out of line with the views of most Americans or with the tradition and precedents of the Court. Rather, the problem is in the Originalists’ insistence that these results follow automatically from a close reading of the Constitution, and hence are politically neutral. In fact, not all Originalists would agree with all of the above claims—calling into question the idea that Originalism provides a neutral, determinate methodology. Notwithstanding the claims to the contrary, [End Page 39] Originalism is anything but neutral; it is in fact a pointedly political program in the guise of a purely legal, constitutional analysis.

Although the idea of textualism and fidelity to the original intention of the framers is as old as the Constitution itself,1 the modern theory of Originalism dates to a particular historical moment: the 1980s and the rise of the Reagan right wing. Two polarizing figures stand out: Edwin Meese, Reagan’s combative Attorney General, who in a 1985 speech denounced the Supreme Court for its liberal activism and its rejection of the original intention of the Constitution; and Robert Bork, the Supreme Court nominee whose hearing before the Senate in 1987 riveted the nation and epitomized the ruthless political battle between liberals and conservatives, culminating in Bork’s losing the nomination (and resulting in the coining of a new verb, to get “borked”). Bork went on to write a book, The Tempting of America, a jeremiad on the decline of American values due to liberalism, reflecting his continuing bitterness at being denied a seat on the Supreme Court. In it, Bork outlines a theory of original intent in constitutional interpretation that is meant as an answer to his liberal opponents. The book has since become a virtual bible of Originalism and of conservatism in general, and Bork has become one of its heroes (and martyrs).

What is most intriguing about Originalism is the insistence of its proponents that their theory is not a politically conservative one but rather a neutral and apolitical approach to legal interpretation.2 The fact that it happens to support mostly conservative positions is, they claim, simply a reflection of the essentially conservative nature of the document, which creates a federal government of strictly limited powers and hence is essentially hostile to the large-scale expansion of the role of the Washington since the New Deal. For Originalists, the problem with liberalism is that it has run roughshod over the Constitution, ignoring its restraints in the name of developing a welfare state and an active regulatory state hostile to business and states’ rights, while actively promoting individual rights that liberals favor (such as anti-discrimination) and at the same time ignoring constitutional rights that liberals reject (such as the right to gun ownership). In a sense, Originalism...


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