Vol. 18 No. 2 (February, 2008) pp.166-172
ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY, by Johnathan O’Neill. Baltimore: The Johns Hopkins University Press, 2005. 281 pp. Cloth, $55.00. ISBN: 9780801881114. Paper, $35.00. ISBN: 9780801887604.
Reviewed by George Thomas, Department of Government, Claremont McKenna College, gthomas [at] cmc.edu.
When “originalism” reappeared as a potential force within the contours of American constitutional interpretation, Justice William Brennan dismissed it as “arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions” (Rakove 1990, 25). Since Brennan’s somewhat cavalier dismissal – the justice, after all, on occasion appealed to some form of original understanding in his own opinions – originalism has had a powerful pull on questions of constitutional interpretation. Its pull, moreover, cannot be reduced to a simple left-right division. And yet, originalism, which first came on the scene as “original intent,” has itself undergone subtle and important changes. As Professor Charles Lofgren pointed out very early in the debate, “Viewed from the perspective of the founding period, framer intent is easily dismissed – a bogus issue which is best forgotten by both ‘intentionalists’ and their critics.” Professor Lofgren, though, was quick to add: “The reasons running against framer intent supported the use of ratifier intent” (Rakove 1990, 142).
These days originalism, or original meaning as it might most aptly be labeled, is defended largely in terms of the meaning identified by those who ratified the Constitution, which has come to be dubbed “original meaning originalism” (Barnett 2006). No doubt, it would be going too far to say that we are all originalists now. Still, some of the most careful textual exegeses of the Constitution come from left of center scholars who earnestly insist on discovering and adhering to original constitutional meaning (Amar 1998; 2005; and perhaps Balkin 2006). This is the very sort of “interpretivism” that was deemed “arrogant” and “impossible” by Justice Brennan, and yet it has become a central feature of American constitutional interpretation.
Johnathan O’Neill’s excellent book, ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY, traces the “return” of originalism from the middle years of the twentieth century to the early 1990s. In tracing out this intellectual genealogy, O’Neill combines political party history, jurisprudential debates, and Supreme Court opinions in a deft and lucid manner. He is even-handed and brings to life the details of originalism, persuasively illustrating that it is far larger than the conservative politics of the Reagan era, even while capturing how the particular conjunction of Warren Court opinions, constitutional theory and conservative politics [*167] combined to make originalism a potent intellectual and political force.
Situating the return of originalism as a reaction to “modern judicial power” as exemplified by legal realism and pragmatism, O’Neill revisits the jurisprudential debates of the early twentieth century. He focuses in particular on those approaches that sought to limit, confine, and legitimize judicial power in the wake of the “revolt against formalism” and classic legal thought. Before turning to such “process restraint” figures – from James Bradley Thayer to Henry Hart and Alexander Bickel – O’Neill gives a succinct overview of what he calls “textual originalism” from prior to the founding to the early twentieth century. It is this period that gives birth to “modern judicial power,” which is rooted in legal realism. But this, as O’Neill argues, could pull in many directions: If legal realism displaced “classical legal thought,” it did not do so with a coherent or unified vision of its own (p.30). Rather, it included calls for constitutional adaptation, balancing, and judicial self-restraint. Many who accepted legal realism, such as Bickel, also took up the “task of firming up the old foundations and rationales of the American legal-constitutional order or constructing new ones” (p.30).
Here O’Neill covers some familiar territory, but in an extraordinarily useful way that recaptures the full nature of debates that have since been eclipsed, as well as offering an insightful overview of legal and political thought during this period. He is also subtly attuned to the politics that influence constitutional thought in the second half of the twentieth century, but does so in a manner that does not simply reduce law to politics. Yet, he also makes a compelling case that “contemporary originalism” stems from particular political and historical circumstances. Indeed, O’Neill goes so far as to say, “At the outset it must be cautioned that traditional textual originalism and contemporary originalism should not be ahistorically equated, nor should we read modern realist conceptions of law and adjudication back onto the different intellectual self-conception of traditional-era jurisprudents” (p.13). In this, the origins of “contemporary originalism” emerge from an inherited set of problems that beset legal and constitutional thought in the wake of the legal realist critique of formalism. At the center of this debate, from the New Deal settlement forward, was the preoccupation with the (now) all-too familiar “problem” of judicial review.
One powerful answer to this “problem” was found in the “legal process” school that called for “judicial restraint.” In the hands of Henry Hart and Herbert Wechsler, drawing in part on Justice Felix Frankfurter, process became a way to constrain judges and render “neutral” decisions even while accepting the tenets of legal realism. And as O’Neill demonstrates, this preoccupation with neutrality in constitutional adjudication is the central justification for “contemporary originalism”: it is offered as a means to ground and limit judicial discretion. Such a move shares the concerns of legal process scholars as it limits judicial discretion by tethering it to the historical intent of those who ratified the Constitution. It also reconciles judicial review – that countermajoritarian institution – with democracy insofar as judicial review is [*168] limited and confined to those areas that the people clearly marked out by way of constitutional text when it acted as popular sovereign.
In tracing out the intellectual origins of contemporary originalism, O’Neill also illustrates how originalism was never wholly lost; it was thus not some odd concoction of conservatives without roots in American constitutionalism. On the contrary, while O’Neill himself does not push the point nearly as much as he might, contemporary originalists have one foot planted firmly in “the New Deal settlement.” Perhaps more interestingly, O’Neill illuminates how the turn to some form of originalism often found expression in surprising places. Not simply in the guise of Justice Hugo Black – who turned to the original meaning of the fourteenth amendment in his quarrels with Justice Frankfurter over incorporation – but in the scholarship of Robert McCloskey and Edward Corwin. These scholars – more often associated with some version of a “living constitution” – both criticized the Warren Court’s establishment clause jurisprudence in originalist terms. Corwin, for instance, criticized the “unhistorical conception of what is meant by ‘an establishment of religion,’” which yielded decisions out of line with “original intent” (p.72). McCloskey similarly rejected “the incorporation of the establishment clause” as “not in the mind” of the “Framers of the Fourteenth Amendment” (p.87).
These Warren Court era cases, if not always leading to arguments rooted in original meaning, fueled debate about history and the historical turn in constitutional thought. Leonard Levy, while deeply critical of original intent, went so far as to say that the Warren Court “flunked history” (p.92). But should history guide constitutional interpretation? The turn to historical original intent, according to O’Neill, grew out of the crossroads of the post New Deal dilemmas of constitutional theory and the decline of the New Deal coalition; it was a way to limit and cabin judicial decision-making that appealed to both scholarly and conservative critics of the Warren Court. Naturally, in this persuasive telling, the figures of Raoul Berger and Robert Bork loom large.
In turning to Berger’s scholarship, O’Neill reminds us that he was an ardent New Dealer who accepted the progressive criticism of the “Old Court.” Following many in the “process-restraint” tradition, then, he was critical of the Warren Court for returning to the putative “activism” of the pre New Deal Court. As O’Neill writes, “Considered in the history of twentieth-century American jurisprudence, Berger’s originalism elaborated the legal positivist majoritarianism of the Progressive and process-restraint approaches” (p.112). Yet even while skeptical of judicial power as wielded in many Warren Court opinions, one of Berger’s first forays into “original intent” was not only a defense of judicial review, but, in essence, a defense of judicial supremacy; it was also dedicated to Professor Henry Hart “who lit the way” (Berger 1969). While Berger spoke of the intent of the Founders, he most importantly turned to the ratification debates – to what would later be dubbed “original meaning” – to gather the public understanding of the text. Indeed, for Berger it was the public enactment of ratification that made the Constitution binding as fundamental law and [*169] legitimized judicial review based upon the original meaning.
Berger’s defense of originalism was seized on by conservatives as it shared, in part, their understanding of democracy and the role of the Court. In fact, as O’Neill illustrates, Berger and conservatives were following the “restraint” tradition that emerged from the New Deal, from which “legal liberals,” as they came to be called, had broken. Robert Bork, who was connected to the “restraint-process” tradition via his Yale Law School colleague Alexander Bickel, also began to make the case for original intent. And perhaps even more than Berger, he did so from the presuppositions of the “restraint-process” tradition. As Bork put it, “the judge who looks outside the Constitution always looks inside himself and nowhere else” (p.138).
Following the train of Bork’s thought leads us to the vexing question of “what” the Constitution is. As Bork himself noted, originalism, like all theories of interpretation, required a defense that inevitably runs beyond constitutional text. Does such an understanding necessarily form an unwritten part of the Constitution? Bork, for instance, defended originalism as the only defensible theory of interpretation because it was the only truly neutral theory of interpretation (pp.164-165). But this move reduced the whole of the Constitution to obviating the problem of judicial “law making.” In this manner, as O’Neill notes, “Bork revived legal positivism and formalism, not the American natural rights idiom or any other form of moral realism that might generate a more limited form of judicial review. Indeed, Bork attempted to close the judicial door on moral discourse once and for all . . . ‘as an inadequate basis for judicial supremacy’” (p.168).
Yet what if the Constitution rests upon moral principles, rendering them a part of the Constitution itself and not, to borrow Justice Holmes’ formulation, some “brooding omnipresence in the sky.” To take a more down to earth example, judicial supremacy is nowhere identified in the constitutional text; it must be defended from a particular theory of the Constitution. And yet Berger and Bork both defend judicial supremacy as central to the constitutional order. In this manner, originalism raised questions that it did not readily solve. In its modern guise, originalism was offered as a “second best” theory of interpretation that would tame judges by tethering them to a neutral process. Foundational constitutional questions, which might require judges to unfold the principles implicit in the constitutional order, where closed as they seemed to invite open ended judicial lawmaking. Note, though, that such a defense of originalism would turn on whether originalism truly constrained judges. What if it does not?
This might illustrate a profound fissure between what O’Neill calls “contemporary originalism” and the nineteenth century version, which he calls “textual originalism.” It is enough of a fissure, in fact, to raise the question of whether “contemporary originalists” are truly “originalists” (at least, that is, if the nineteenth century versions were). After all, it was these nineteenth century jurists who engaged in the very sort of constitutional reasoning – one feature of which was characterized by critics as [*170] “substantive due process” – of which Bork and Berger were so critical. And yet, a jurist of this nature, like Justice George Sutherland, would insist on originalist ends: “A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time” (BLAISDELL, at 448-49). Sutherland would go on to insist that the Constitution’s meaning was fixed, even while its application, as it brings within it new circumstances, might be altered. This sort of “textual originalism” is all the more intriguing as its expositors, while attending carefully to constitutional text, were most noted for defending rights that were not enumerated within the Bill of Rights. And it is this that has led “contemporary originalists” such as Bork and Justice Antonin Scalia to condemn these “textual originalists” as defenders of so-called “substantive due process.” This break is not easily patched over. It may even suggest that the most serious divide is between a nineteenth century “textual originalism” moored in a natural rights foundation, on the one hand, and a break with this foundation embraced by most schools of modern jurisprudence.
While O’Neill notes this profound break, he does not have much to say about it. At times he even seems to accept the critique of these earlier justices, using the term “economic substantive due process” in describing their jurisprudence despite the fact that it does not begin to capture the capaciousness of this early constitutional thought (which did not distinguish between personal and economic liberty). Here, too, is the only serious criticism of O’Neill’s book: for a book on constitutional thought, it does not wrestle with thought at a foundational level. He does not ponder if “contemporary originalists” have lost something that was essential to original constitutional ends by neglecting the principles and presupposition upon which the Constitution rests. Perhaps this is an unfair criticism. O’Neill’s aim, as a gifted historian, is to provide a history of the return of originalism and not to take up the admittedly more philosophical question of whether the originalism he describes can truly be described as originalism.
O’Neill does, however, leave us with alterations and modifications within originalist thinking that are very much attuned to the dilemmas raised by the “first wave” of “contemporary originalism.” The second and third waves of “contemporary originalism,” refined against criticism, have largely broken with the essential justifications of original intent offered by the likes of Bork. These originalists have insisted that original meaning is essential to the very nature of a written constitution (Whittington 1999; 2004; Barnett 2004; 2006). In doing so, scholars have offered more principled – and even philosophical – arguments for originalism. In this, these arguments for originalism have more of an affinity with the “textual originalism” that O’Neill attributes to nineteenth century constitutional thought.
If originalism has had a powerful influence on constitutional thought, it has not been as influential on judicial decision-making. Even so, O’Neill notes that there has been a serious turn to questions of original meaning. Consider that in recent establishment clause cases, [*171] the majority and dissenting opinions are often a quarrel about the original understanding of the clause (e.g. LEE v. WEISMAN and ROSENBERGER v. UNIVERSITY OF VIRGINIA).
ORIGINALISM IN AMERICAN LAW AND POLITICS is an excellent account of the historical origins and development of the return of originalism. It will be of great interest to political scientists and legal scholars; it should even have wide appeal for a more popular audience as O’Neill writes with wit and elegance and not a trace of academic jargon. Let us hope, as well, that it finds a wide audience among historians – particularly younger historians who have followed the discipline’s turn away from constitutional history. It would be nice to see the return of constitutional history to History proper. And O’Neill has provided a ready vehicle for just such a return.
Amar, Akhil Reed. 1998. THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION. New Haven: Yale University Press.
Amar, Akhil Reed. 2005. AMERICA’S CONSTITUTION: A BIOGRAPHY. New York: Random House.
Barnett, Randy. 2004. RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY. Princeton: Princeton University Press.
Barnett, Randy. 2006. “Trumping Precedent with Original Meaning: Not as Radical as it Sounds” 22 CONSTITUTIONAL COMMENTARY 257.
Balkin, Jack M. 2006. “Abortion and Original Meaning” Yale Law School Public Law Working Paper No. 119. Available at SSRN: http://ssrn.com/abstract=925558 .
Brennan, William J. Jr. 1985. “The Constitution of the United States: Contemporary Ratification” in Rakove, ed., INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT.
Burger, Rauol. 1969. CONGRESS v. THE SUPREME COURT. Cambridge: Harvard University Press.
Lofgren, Charles A. 1988. “The Original Understanding of Original Intent?” in Rakove, ed., INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT.
Rakove, Jack N, ed. 1990. INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT. Boston: Northeastern University Press.
Whittington, Keith E. 1999. CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW. Lawrence: University Press of Kansas.
Whittington, Keith E. 2004. “The New Originalism,” Georgetown Journal of Law and Public Policy 2: 599-613.
HOME BUILDING AND LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934). [*172]
LEE v. WEISMAN, 505 U.S. 577 (1992).
ROSENBERGER v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA, 515 U.S. 819 (1995).
© Copyright 2008 by the author, George Thomas.