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The New Originalism in Constitutional Law
The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.
In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In Part II, I then discuss how originalism can influence the outcome of such cases as District of Columbia v. Heller, McDonald v. City of Chicago, and National Federation of Independent Business v. Sebelius (NFIB). I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision.
Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation–construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.
This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction always occurs when the constitutional text is applied to a particular legal case or official decision. Although some constitutional theorists may prefer to use different terminology to mark the distinction between interpretation and construction, every constitutional theorist should embrace the distinction itself, and hence should agree that construction in the stipulated sense is ubiquitous. Construction occurs in every constitutional case.
The second claim is more substantive and practical. In some cases, construction can simply translate the plain meaning of the constitutional text into corresponding doctrines of constitutional law—we might call this strict construction. But in other cases, the constitutional text does not provide determinate answers to constitutional questions. For example, the text may be vague or irreducibly ambiguous. We can call this domain of constitutional underdeterminacy the construction zone. The second claim is that the construction zone is ineliminable: the actual text of the U.S. Constitution contains general, abstract, and vague provisions that require constitutional construction that goes beyond the meaning of the text for their application to concrete constitutional cases.
Central to the new originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to determine the Constitution’s original communicative content, while construction builds out doctrines, institutions, and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.
The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.
First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.
Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that nonadoption history is as important as adoption history to constitutional construction.
Third, there is no single modality of “historical argument.” Instead, history is relevant to many different kinds of constitutional argument. One important task of this Article is to rethink the familiar model of modalities of argument offered by Philip Bobbitt and Richard Fallon; and to offer a different version that better reflects the multiple ways that lawyers and judges actually use history in constitutional argument.
Fourth, according to the new originalism, arguments about adoption history can offer mandatory answers only with respect to questions of interpretation; they cannot do so for questions of constitutional construction. That is, new originalists accept an originalist model of authority only with respect to questions of interpretation, not construction. Yet new originalists, like most lawyers, often make appeals to adoption history in constitutional construction. This raises the obvious question why American judges and lawyers should use or accept arguments from adoption history in constitutional construction and only sometimes find them persuasive. The originalist model of authority by itself cannot answer this question.
Fifth, we can solve this puzzle by paying careful attention to how lawyers and judges actually use adoption history. In constitutional construction, “originalist” argument is not a single form of argument. It involves many different kinds of argument, and it often appeals to ethos, tradition, or “culture heroes”—honored authorities who are treated as objects of respect, wisdom, and emulation.
In fact, in constitutional construction, arguments from adoption history are often hybrid; they appeal to multiple modalities of argument simultaneously. Most arguments about the Founding period usually also make implicit appeals to one of three modes of argument: national ethos, political tradition, or honored authority.
This hybrid nature gives arguments from adoption history their distinctive character in constitutional construction. Despite the dominance of original public meaning originalism in originalist theory, lawyers actually use adoption history quite differently from the way that academic theory prescribes.
Sixth, precisely because originalist arguments (in constitutional construction) generally appeal to ethos and tradition, they will normally not be persuasive unless the audience can plausibly accept the values of the adopters as their own, or can recharacterize them so that they can plausibly accept them as their own. When these values appear too alien or irrelevant, lawyers generally avoid making originalist arguments. Thus, lawyers do not feel an obligation to consult adoption history in every case; and when they do, they do not accept the results of adoption history as binding on them if there are other considerations.
Seventh, in constitutional construction, adoption history is a valuable resource available to originalists and nonoriginalists alike. Indeed, once they understand how originalist–style arguments actually operate in the construction zone, nonoriginalists and living constitutionalists should have no qualms about appealing to adoption history and making originalist arguments. Using such arguments does not undermine living constitutionalist theories of construction in the least. Refusing to employ adoption history serves no important theoretical principle and has no significant rhetorical advantages; indeed, all it does is limit lawyers’ ability to persuade their fellow citizens through calling on shared traditions and invoking powerful symbols of cultural memory.