Saul Cornell: New Originalism: A Constitutional Scam





Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and a Senior Research Scholar in Residence at Yale Law School.

AMERICANS ARE deeply divided over how to interpret the Constitution. Originalism, the view that judges should interpret the Constitution by discovering the original intent or the original meaning of the text, has a strong hold on the public. Yet the opposing view, that judges ought to interpret the Constitution as a living document and read it in light of contemporary values or an evolving tradition, is also well entrenched in American culture. Not surprisingly, support for originalism is strongest among Tea Party activists, conservatives, and Republicans. Although the vast majority of legal academics are not originalists, the theory of originalism has never been stronger among law professors. Indeed, originalism now has adherents not only among conservative but also liberal legal scholars. There is really only one group in American society that remains largely immune to the lure of originalism: historians.

At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. One might attribute the resolute anti-originalism of most historians to the fact that they are generally more liberal than the population at large and thus oppose originalism for political reasons. Although political orientation may account for some of this animus, their hostility to originalism has less to do with politics and more to do with questions of historical interpretation and method. When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”

ORIGINALIST CONSTITUTIONAL theory developed during the Reagan years as a critique of activist judges. Its theorists argued that a jurisprudence focused on the original intent of the Founders would serve as a means of limiting the discretion of judges. This theory proved controversial from the start and was subjected to a number of withering criticisms. One of the many problems with the theory stemmed from its shaky historical foundations. Simply put, the Founders did not speak with a single voice on most constitutional questions. Thus, traditional originalism collapsed as evidence accumulated that the Founding generation disagreed on most of the major constitutional issues they confronted. If Madison and Hamilton could not agree on how to interpret the Constitution, how could modern judges claim to have found an objective means to discern the true meaning of its text?...



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