Is Originalism A Fandom?

Abstract

Within the traditional terms of constitutional theory, the path of originalism and its interpretive community in recent decades is challenging to explain. Why has the number of self-described originalists increased over time despite the flaws and weaknesses of that approach to constitutional interpretation having been well documented over many years? Why do originalists persist in offering up inaccurate or misleading historical accounts after repeated challenges to that practice? Why would scholars seeking to defend recent progressive and inclusive case law want to rebrand evolving contemporary norms as somehow a form of historically grounded originalism? From an interdisciplinary perspective provided by scholarly work in the academic field of fan studies, however, the explanations readily come into focus. For at least the past half-century, originalism has played a prominent role in U.S. constitutional theory. For a quite similar length of time, Star Wars has been a popular culture phenomenon in the United States. Both involve highly contestable issues of interpretation of an iconic text, including the scope and solidity of its initial meanings and the evolution of the text itself over time. Both involve publicly prominent historical narratives that place disproportionate emphasis on certain individuals and influences, nostalgia for an inauthentic past in service of present objectives, and an undercurrent of backlash against changes that bring more inclusion and pluralism. Both demonstrate, in their own ways, the inevitability of interpretive disagreement and the impossibility of divining a singular objectively provable meaning when the text at issue not only contains numerous generalities and indeterminacies, but also carries a profound emotional, cultural, and personal significance to its interpreters and the broader community in which their interpretive analysis occurs. Consequently, while it may be more intuitive to associate a global media franchise like Star Wars with analysis of fandom, the dynamics present in originalist constitutional interpretation are really not so different. When viewed through the lens of this comparison, today’s originalism is not so much a constitutional theory as it is a fandom.