Vol. 15 No.11 (November 2005), pp.989-992
ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY, by Johnathan O’Neill. Baltimore: Johns Hopkins University Press, 2005. 296pp. Hardcover. $55.00. ISBN: 0-8018-8111-0.
Reviewed by Susan Burgess, Department of Political Science, Ohio University. Burgess [at] ohio.edu
In ORIGINALISM IN AMERICAN LAW AND POLITICS, historian Johnathan O’Neill provides a compelling narrative of originalism in American constitutional law and theory from the founding period through the end of the 20th century. In doing so, he offers a provocative plot line that tracks the historical rise, fall and resurrection of originalism, as well as an intriguing analysis of its longevity that draws heavily on new institutionalist literature in political science. I begin with his plot line:
In the beginning, there was original intent.
O’Neill argues that, beginning with the Founding, and up until roughly the turn of the twentieth century, everyone took for granted that the way to interpret the Constitution was to refer to the written text and to the intention of its framers. Interpreters were blissfully ignorant of other forms of constitutional argument. Thus, the first sentence of his book reads: “Before the triumph of modern judicial power in the twentieth century, constitutional interpretation was understood as the ascertainment and application of the fixed, unchanging meaning of the written Constitution” (p.12). Sure, there was contestation, but it was not about whether the founders should be authoritative. Rather, disagreement centered on whether the founders intended the Constitution to be read narrowly or broadly. Constitutional authority stemmed from the popular sovereignty generated through ratification, with framers’ intent emerging as a limitation on institutional power. Heroes include Madison, Marshall, and Story.
Then came legal realism, the forbidden fruit.
For O’Neill, legal realism creates a “fundamental rupture” that opens up a whole new form of legal consciousness, tempting judges and scholars to renounce their heretofore unselfconscious faith in un-theorized originalism. The Edenic period preceding legal realism is presented as a norm against which all subsequent periods are measured. Thus, O’Neill argues that “the idea that interpretation was something other than a search for intent or that a judge could balance competing policy goals or ‘update’ the living Constitution to his view of contemporary requirements was almost never heard before the late nineteenth century” (p.15). Among the many evils attributed to legal realism are the living Constitution, liberal legalism, unfettered judicial power generally, and the Warren Court specifically – all of which hold in common the original sin of ignoring intent. The cast of characters includes Holmes, Pound, and all the usual [*990] suspects associated with the triumph of the New Deal and Warren Court jurisprudence. O’Neill argues that the rupture occasioned by legal realism “undermined nothing less than the traditional rationales for democracy, judicial review based on a written constitution, and the rule of law” (p.30).
Accordingly, the rest of the book explores various attempts to resurrect originalism and restore tradition, but alas, by the end of the story we are forced to conclude that there is no getting back to the Garden. There is, however, much to explore east of Eden as originalism wanes following the advent of legal realism, particularly during the New Deal period, and then waxes in the wake of BROWN, Raoul Berger’s “explosive” GOVERNMENT BY JUDICIARY, the creation of The Federalist Society, and the rise to power of Attorney General Edwin Meese during the Reagan years.
Despite substantial gains, originalism wanes once again with the failed Bork nomination, so much so that some believed that the Bork debacle signaled “the final victory for the living Constitution,” concluding that “liberal legalism seemed to have weathered the originalist storm” (p.184). Nevertheless, originalism rose yet again in the 1990s, led by a whole new cast of characters, including political scientist Keith Whittington whom O’Neill credits with offering a more theoretically rigorous and less polemical form of originalism than Berger and Bork. By this time, even liberals like Cass Sunstein and Bruce Ackerman have joined the fold, reflecting “the success of originalists in continuing the debate about the relevance of history, the role of judicial review, and the nature of constitutional change” (p.201).
Despite these academic conversions, O’Neill concedes that originalism’s influence on the Court “was not as deep” (p.205). As Thomas Keck has also concluded in his excellent book, THE MOST ACTIVIST SUPREME COURT IN AMERICAN HISTORY, O’Neill notes that no matter how loudly contemporary conservatism bangs its originalist drum, it does not necessarily serve to “roll back modern judicial power or the legal liberal precedents of the Warren and early Burger courts” (p.153). Ironically, it appears to support both, yielding a conservative court that supports an activist and, at least to some extent, a liberal agenda on abortion, affirmative action, and gay rights (not to mention the political thicket of BUSH v. GORE).
Grounding the analysis of his story in historical new institutionalism, O’Neill argues that originalism is “too fundamental to the American constitutional order to be wholly expunged, even as modern judicial power ascended” (p.37). As both John Brigham and yours truly have noted elsewhere, originalism has had a great many lives in American politics, often returning to the fore well after some have written it off as long since dead (Brigham 2003; Burgess forthcoming 2006).
According to O’Neill, originalism has not died off because it expresses “the traditional liberal constitutionalist idea that law must have authoritative, foundational content before its application” (p.213). Too much moral argument or instrumentalism “threatens [*991] the regime’s attempt to secure order and stability by using words to distinguish law from politics” (p.214). However, he concedes, that “The Warren Court demonstrated that the modern liberal ontology of rights (or autonomy) and equality are [also] part of the constitutional order and will sometimes drive judicial decisions in spite of other conceptions of the regime, even if such decisions cannot be readily reconciled to either the original understanding of foundational texts or the conceptions of the regime held by the Court’s critics” (p.215). As Ronald Kahn has argued in his fine book, THE SUPREME COURT AND CONSTITUTIONAL THEORY, that these decisions became settled law suggests that they are not alien to the constitutional order. This helps explain their perhaps surprising persistence during the Rehnquist period. Despite his staunch advocacy of originalism, O’Neill is forced to conclude that “American constitutional jurisprudence is best described empirically as an amalgam of plural modalities of argument that depend on competing conceptions of legal authority, which are never wholly able to displace one another” (p.212).
Rather than ending there, O’Neill makes one last bid for originalism. Because his story started with the Garden, it perhaps makes sense that it would end with a nod to the apocalyptic overtones of Hobbes, along with a call for withstanding political pleas for justice in the name of maintaining order, stability, and a more distant, and thus more authoritative written law. Stating that modern constitutionalism “was birthed in the desire to gain a measure of order and stability at the expense of continued direct and sometimes bloody confrontation with divisive questions of ultimate justice,” he argues that “originalism partakes of the conservatism inherent in the constitutionalist attempt to achieve order and stability by creating some distance between written law and political aspirations based on more direct appeals to justice, nature, rights, or class” (pp.216, 215).
Following this logic, a fundamental constitution seems necessary to hold off the end of (this regime’s) times. Thus, O’Neill argues: “Only the passage of time will permit judgment of whether the arrival of originalism on the scene is the first step toward returning to a more traditional conception of the American constitutional order . . . . [or] [i]t is quite possible that instead it is the last gasp of that order” (p.215).
Hobbes notwithstanding, I would argue that logical necessity is not the same as political necessity. And political necessity may well dictate a continued need for justice and rights. While such talk may not accord with the more genteel discussion which O’Neill believes characterized the period before legal realism, there is no particular reason to believe that it will plunge us into the abyss. There is a world of (political) space between Eden and the Apocalypse. And that, I would argue, is a good thing.
Berger, Raoul. 1977. GOVERNMENT BY JUDICIARY. Cambridge: Harvard University Press.
Brigham, John. 2003. “Original Intent and Other Cult Classics.” 11 PEGS JOURNAL: POLITICAL ECONOMY OF THE [*992] GOOD SOCIETY 13-17.
Burgess, Susan. 2006 (forthcoming). “Who’s Your Daddy? Legitimacy, Parody, and Soap Operas in Contemporary Constitutional Discourse.” 2 LAW, CULTURE, AND THE HUMANITIES.
Kahn, Ronald. 1994. THE SUPREME COURT AND CONSTITUTIONAL THEORY, 1953-1993. Lawrence: University Press of Kansas.
Keck, Thomas. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: University Press of Chicago.
BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).
BUSH v. GORE, 531 U.S. 98 (2000).
© Copyright 2005 by the author, Susan Burgess.