Category Archives: ORIGINALISM

Originalism class 2: Printz as a paean to the living constitution

Will asks whether originalists should be heartened or troubled by Campbell’s debunking of Justice Scalia’s historical analysis in Printz. However, the majority opinion is not originalist at all. Scalia doesn’t address the historical materials with any rigor; he argues (quite candidly) that the anti-commandeering principle is consistent with the historical record, not that it emerges from the best reading of the historical record. Where does that principle come from? Precedent: “Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court.” Scalia thinks that New York v. U.S. controls, and the weak foundation-era history provides no basis for overturning it. Would Scalia have switched sides if Campbell’s work had been before him? Hard to know, but I would not advise Congress that it is now free to commandeer.

On The Federalist Papers, given the specific political use for which they were written and published, there is little reason to believe that they represent a general account of the original understanding as it existed in all 13 states. The reason that The Federalist has fetish-value today is simple: it has been cited over and over by the Supreme Court, and so has become a source of constitutional law that supplements the text and other materials.

Originalism: history vs. law

Will says that the Supreme Court could have held in favor of Heller on simpler and more intuitive grounds than those laid out in Scalia’s opinion. The purpose of my earlier post was not to argue that a well-reasoned originalist opinion could not be written but to point out that the actual opinions (by Scalia and Stevens) were poorly reasoned and written, and to raise the suggestion that originalism, as practiced by judges, lends itself to bad historical reasoning because judges are not historians but lawyers, and (by necessity) do law-office history rather than real history. Indeed, this very point about the difference between history and law-history is Will’s (“what seems like an intractable historical debate is really solved by a legal or interpretive question about what kind of history matters”). But if Will is right, this disconnects originalism from one of the theoretical reasons for its appeal.

The very reason identified by Michael Rappaport, who says that originalism is appealing because the “idea that a written law should have the meaning that it had at the time of its enactment seems extremely intuitive and part of how we understand legislation and other written enactments.” Exactly: the real understanding, not the understanding that is constructed from legal rules that permit some types of evidence and exclude others–the presumptions, fictions, and tie-breakers that are necessary to facilitate decision-making and enhance the predictability of law. But this is in tension with his statement “the ordinary person is usually an originalist.” Maybe a historical originalist but not a law-office originalist.

But I’m not so sure that the ordinary person is any kind of originalist, because it’s pretty clear that the ordinary person has all kinds of ideas about what his constitutional rights are that cannot be traced to the original understanding—for example, that the national government cannot discriminate on the basis of race, or that government can’t censor artistic expression that offends community standards. In fact, the direction of causation probably goes the other way: people read into history whatever constitutional rights they think they should have now. Our constitutional culture is the residuum of a struggle to reduce the cognitive dissonance between reverence for the founding generation and commitments to modern-day rights and government structure.

Originalism seminar class 1: Heller

The graph below shows the number of students who give themselves a 1 (“strongly disagree”) to 5 (“strongly agree”) in response to the statement “I consider myself an originalist.” We also asked them (anonymously) for their political beliefs, and there is a moderate correlation (0.48) between being an originalist and being conservative.
Let’s see whether students change their mind by the end of the course. Meanwhile, a few comments on Heller. It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the Court does not resolve the ambiguity one way or the other. A general preference for allowing voters to make up their own mind, the absence of any allegation or evidence of political failure, a relevant precedent if not a strong one, and a very long history of gun control legislation across the country all point to upholding the statute. Both Scalia’s and Stevens’ opinions are horrible messes. Scalia’s parsing of the text is wooden and ludicrous. Both of them select the evidence they like and interpret it tendentiously. Neither show any feeling for history. The opinions are tedious, pompous anti-models of judicial writing, no advertisement for the method of originalism.

Originalism seminar: questions for first class

For our first meeting of the originalism seminar tomorrow, we’re reading Heller, the Sunstein/Barnett debate, and the Brest article. Here are some (possibly leading) questions for students to think about ahead of class. If time permits, I will provide my own answers in a later post.


Does this case represent the triumph of originalism because both sides dwell on the original understanding of the Second Amendment or a failure because they don’t agree on what it is? One argument for originalism is that it constrains judicial discretion; well, does it?

Does Scalia or Stevens provide the better account of the meaning of the Second Amendment? One thing to ask yourself is how carefully you think the drafters of the Constitution chose these words, and whether the people who approved the Constitution thought about them as carefully as the Court implies. In this connection, my eye was caught by Scalia’s statement that “the fact that the phrase [‘bear arms’] was commonly used in a particular context does not show that it is limited to that context.” Sensible way to interpret a clause?

Do you think a historian who was conscientiously trying to figure out how people understood the Second Amendment would write the way Scalia and Stevens do?

Justice Scalia says Miller does not control the Court because it was not a thorough examination of the Second Amendment. What if it had been—but had come out the other way, like Stevens’ opinion? Would Scalia have decided Heller differently?


What are the politics of originalism—and the politics of those who criticize originalism? Is originalism “conservative,” or, as Sunstein argues, “radical” (or “fundamentalist”), or neither? Note the disagreements about rhetoric as well as politics and law. Is it unfair to refer to a “Lost Constitution” or a “Constitution in Exile”?

What is their core disagreement about originalism? Notice that Barnett returns again and again to the question of judicial discretion, and Sunstein to the question of good outcomes (do we want to live under a Constitution that permits the government to discriminate on the basis of race and sex?). Do they engage? To what extent does the argument for originalism depend on the argument against its alternatives?


“The interpreter’s understanding of the original understanding may be so indeterminate as to undermine the rationale for originalism” (p. 222). Comment.

What entrenched and/or popular constitutional doctrines does originalism rule out? See p. 224 and refer back to Sunstein and Barnett.

What are the “ends of constitutional government” that a good theory of constitutional interpretation must serve, according to Brest? Do you agree with Brest that those are the ends of constitutional government? And how do they connect up with the Ely/Bickel approach that Brest commends?

Originalism and its critics

This quarter I co-teach a seminar on Originalism and Its Critics with my new colleague, Will Baude. I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics. If you are interested, here is our syllabus (Originalism and Its Critics syllabus dec. 12). I will post reactions to the articles as I read them, and perhaps Will will post his own reactions at the Volokh Conspiracy where he blogs.

Why originalism?

ngram originalism cropped

The blue line shows how often “originalism” appears in books from 1900 to 2010, and the red line shows how often “evolving constitution” appears. The sharp increase in references to “originalism” occurs after 1980. Courtesy Google ngram.