Heller and Originalism's Dead Hand - In Theory and Practice

Abstract

This Article considers whether and how originalism promotes the Constitution’s democratic legitimacy, in theory and in practice. In the late twentieth century, critics of the Warren and Burger courts argued that judicial review lacks democratic authority when judges depart from the original understanding of those who ratified the Constitution. Originalism’s critics objected that giving past generations this kind of control over the living would vitiate the Constitution’s democratic authority. Initially, originalism’s theorists belittled this objection to dead hand control; recently, originalists have developed varied and sophisticated responses to it. But these responses generally tend to qualify originalism’s claims to democratic legitimacy or to weaken the originalist character of the interpretive method they set out to defend. The dead hand objection may trouble originalism in theory, but it poses far less of a problem in practice. To show why, the Article examines originalist interpretation in Heller v. District of Columbia. While Heller purports to enforce the decisions of eighteenth-century Americans, this Article identifies several forms of internal evidence that suggest the opinion is enforcing the beliefs of Americans living long after the Constitution’s ratification. This evidence, considered alone or with the social movement history of Heller that I have elsewhere examined, shows how originalism can enforce the constitutional convictions of living Americans. In practice, originalism appears to be a species of popular constitutionalism. If originalism does not enforce dead hand control, what role might constitutional history play in constitutional interpretation? To explore this question, the Article compares the role of historical argument in Heller and Parents Involved in Community Schools v. Seattle School District No. 1—a recent equal protection decision in which conservative and liberal justices fought over Brown and the post-ratification history of the Fourteenth Amendment. As appeals to pre- and post-ratification history in these cases illustrate, history constrains as it channels debate. Appeals to the collective memory of past constitutional settlements enable Americans of very different normative views to make authoritative claims about who we are and what we owe one another.