On the Origins of Originalism

Abstract

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our own culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument and that the domestic debate over originalism should be understood in ethical terms. I. Introduction For the last quarter-century, originalism has been the idiom of judicial restraint in the United States. Originalism's proponents defend it as uniquely appropriate to judging in a constitutional democracy because, unlike its competitors, originalism offers articulable and transparent criteria for discerning the of ambiguous constitutional texts. Without the discipline originalism enforces, judges are free to decide cases according to metrics that are either impermissible - their naked policy preferences, say - or too opaque to impose the public accountability the judicial role demands. Despite sustained criticism that has discredited originalists within certain corners of the legal academy, the originalism movement is a success by numerous measures.1 As others have remarked, the Court's recent decision in District of Columbia v. Heller2 was less interesting for its result, which was widely anticipated, than for the fact that Justice Stevens's lengthy dissent spent so much space parsing the views of eighteenth-century Americans on the of the Second Amendment's text.3 As Part II of this Article details, originalism is a recurring topic of discussion in newspaper editorials, on blogs, on talk radio, and at confirmation hearings, and consistently large numbers of Americans report in surveys that they believe Supreme Court Justices should interpret the Constitution solely based on the intentions of its authors.4 In light of the claims to singular democratic legitimacy made on originalism' s behalf, and given the evident sympathy of many Americans toward those claims, it is curious that originalism is so little celebrated outside the United States. The notion that the of a political constitution is, in any practical sense, fixed at some point in the past and authoritative in present cases is pooh-poohed by most leading jurists in Canada, South Africa, India, Israel, and throughout most of Europe, and the text-bound original meaning version of originalism that has been ascendant in recent years in the United States is on the wane in Australia. The global rejection of American-style originalism would be understandable if constitutional judges in other democratic countries either were ignorant of originalism' s claims to judicial restraint or were discouraged from such restraint altogether, but neither is true. The charge of judicial activism is neither unique to nor uniquely stigmatic within American constitutional discourse,5 and for all the hostility many originalists show toward importing foreign jurisprudence into American constitutional interpretation, the domestic originalism movement has not been reticent in seeking to export itself abroad. …