A Watershed Moment for New Originalism

A New Era For Constitutional Law and Theory

If 1987 marked the downfall of originalism, then 2017 might be known as the comeback, thanks to Judge Gorsuch, an originalist who has testified to his adherence to the “original public meaning.”

Twenty years ago Robert Bork, a self-professed originalist, failed to earn enough votes to make it to the Nation’s highest court. And originalism ventured into an isolated wilderness. Now, Judge Gorsuch, who has brought originalism out of obscurity, is also bringing originalism squarely into the mainstream. Given an impending confirmation vote for him in late spring, Judge Gorsuch’s ascension to the bench will likely normalize originalism in many academic and political circles.

This is important for two of many reasons. First, state-of-the-art originalism, as a method of constitutional interpretation, is arguably the best-suited for the task. Second, originalism has the ability to appeal to individuals of all stripes, from left to right on the political spectrum.

Originalism Defined

Georgetown Law Professor Lawrence Solum testified at the confirmation hearings for Judge Gorsuch. A reprint of his comments can be found here. He described the three core ideas at the center of originalism as 1) the original meaning of the constitutional text is the original public meaning 2) the original meaning of the text is fixed at the time it is enacted and 3) all judges should be bound by the original meaning of the text.

“Originalism is in the mainstream of American jurisprudence historically,” said Professor Solum, “and originalism should be acceptable to Americans from a broad range of political orientations.”

Add that to a recent article published by Syracuse Law Professor Tara Helfman. Her remarks explain what originalism is and what it is not (and why that matters). As Judge Gorsuch has testified during the hearings, originalism services the rule of law and provides stability. She said in part:

“This means that people can determine what the law requires of them simply by looking at the text of a statute. This is important because litigants are judged for their past conduct. As a result, they should be governed by the legal standards that applied at the time of that conduct–not by what a judge subsequently thinks the law ought to have required their conduct to be….An originalist is not a medium, conjuring the secret, unexpressed intentions of the Constitution’s framers in a judicial séance”

Procedure v. Outcome

To be sure, originalism has its critics. Yet, no one is seriously claiming that originalism is a perfect theory or, more accurately, a family of methods. Just because a doctor messes up a surgical procedure does not mean the procedure is the problem. The same applies to originalism. Just because it may have been done poorly, does not mean the actual method of interpretation is bad.  The onus is on critics to name a method of constitutional interpretation that leads to better consistency than originalism.

Keep in mind that originalist scholars do not look alike. Followers of originalism constitute a patchwork of diverse opinions and political ideologies; more than people give it credit for. They range from Professor Randy Barnett (Georgetown Law) to Professor Sai Prakash (UVA) and to Professor Will Baude (Chicago). And for those adherents to living constitutionalism, you can successfully live as a hybrid of the two, according to Professor Jack Balkin (Yale)

Individuals who claim that originalism today amounts only to the original framer’s intent, are ignoring developments or are simply misinformed. (e.g. Originalism is not asking, what would James Madison do?)

Originalism has always belonged, despite many politicians’ knee-jerk reaction to originalism as incompatible with their political and constitutional goals. There are originalists on the court – that’s no surprise. But if Judge Gorsuch becomes the next Supreme Court justice, he will have played a champion-like role in originalism’s historical arc. All originalists, past and future, can embrace a bright future.

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