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The Obsolescence of the Originalism Battles
Witt, John
Witt, John
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Abstract
The landscape of American constitutional interpretation bears a grim resemblance to the shattered earth at Ypres in 1917. Originalisms and their Living Constitutionalism adversaries dig ever deeper trenches behind progressively denser thickets of barbed wire. Law review pages by the tens and hundreds of thousands issue charge and countercharge like the heavy repeating artillery of the First World War, each new upload to SSRN another salvo from the legendary French 75 or Germany’s Big Bertha howitzer. Regular assaults from the contending sides, pro and con, occasionally inflict damage. Mostly they merely reaffirm the status quo through marginal changes of position in a wasted landscape of ever smaller innovations. Original intent shifts to original public meaning. Original methods originalism gives way to original law originalism. Living constitutional originalists don the uniforms of their adversaries and lead daring intelligence forays on originalism’s left flank—not a war crime, technically, but an act of espionage punishable by death. Yet despite breathless news reports back from the front lines, the arrayed scholars move the front barely at all, notwithstanding huge expenditures of effort and resources. All the while, the battle consumes an entire generation of creative and brilliant human beings—this time constitutional scholars—in its greedy maw.
Famously, the military methods of the First World War met one another in stalemate. Until, that is, the strategic situation changed. As the French learned to their dismay and lasting shame in the spring of 1940, the airplane and the tank outflanked and overran the trench, the barbed wire, and the artillery piece. And just like that, the stalemate of the trenches—the strategic logic that had dominated the imaginative efforts of a generation of military strategists—was rendered obsolete.
So, too, in constitutional law. When Donald Trump won the presidency in 2016, many in the legal academy contemplated that originalism would be central to their professional lives for the foreseeable future, perhaps the rest of their careers. Some celebrated. Others mourned. But strikingly, there seems to have been less occasion for festivities or grief than one might have thought. Constitutional conservatism in the Age of Trump seems now conspicuously, if fitfully, to be in the midst of turning to tools better suited to its newfound clout. And so perhaps it is worth contemplating originalism in retrospect—as a receding interpretive formation. Right or wrong as an interpretive method—receding or dominant, as the case may be, as a hermeneutic framework—originalism warrants historical explanation. What explains the efflorescence of constitutional theorizing around originalisms? What was its meaning and function? What explained its notable successes on the field of constitutional struggle?
In this essay, I follow the lead of scholars who have argued that originalism’s unifying function was to serve as a device for knitting together an otherwise fractious coalition of conservative insurgents in the New Deal order. I describe an array of constituencies—ranging from pro-life Protestants and law-and-order conservatives, to market libertarians, disappointed Dixiecrats, and restless Straussian intellectuals—that rallied to the banner of originalism because of the congenial coalitional power it offered. And I survey some of the new technologies of constitutional interpretation bidding to render originalisms anachronistic.