Andy Koppelman has an interesting post on originalism. Here is an excerpt:
Originalists do not think that their field is in crisis. They should. They are now fragmented on multiple methodological questions. Is the object of inquiry the original intentions of the drafters of the Constitution, the original semantic meaning of the language, or its original public meaning? Is the meaning that matters that subjectively held at the time of enactment or the objective meaning of the language? Is it the actual understanding of those who lived at the time, or that of a hypothetical reasonable interpreter? . . . Originalists are now on all sides of these debates. As a consequence, originalism has fragmented into an enormous number of different theories.
In most scholarly fields, fragmentation is not a problem. . . But the stated purpose of originalism is to produce unique and indisputable answers to legal questions in order to eliminate the possibility of judicial discretion. The proliferation of originalisms, and the certainty that none of them will vanquish its rivals, together with the concession in many of the sophisticated variants that interpretive discretion is unavoidable, make this enterprise a forlorn one. Multiple originalisms, then, are problematic for the same reason that multiple popes are problematic. Some writers have concluded that there is no longer any practical difference between originalism and nonoriginalism. Pamela Karlan analogizes originalism to a product whose name has come to refer to an entire category of products regardless of their source, like aspirin or cellophane. She argues that “it would be better if arguments over interpretive theory stopped trying to invoke this now-meaningless brand name.”
Yet the appeal to originalism has continuing power. The proliferation of originalisms is testimony to that power: everyone wants to get into the act. (emphasis added).
With all due respect, I strongly disagree. There are several problems here.
First, originalism is not in a crisis. It is in its renaissance. Go back 10 or 20 years, originalism was a view that was ridiculed as simplistic, stupid and evil. That is much less the case today. Instead, originalism is gaining adherents not just from conservatives but from libertarians and liberals. Andy speaks of the power of originalism. He would not have said that 20 years ago.
Second, it is true that there are different kinds of originalism and that presents a challenge. But the reason is that so many former nonoriginalists — from Randy Barnett to Larry Solum to Michael Perry to Jack Balkin — are now originalists. The nations of Europe have always thought that America was problematic because it had so many immigrants, but Americans have thought of this as a strength and they have been correct. So too with originalism.
Third, Andy says that "the stated purpose of originalism is to produce unique and indisputable answers to legal questions in order to eliminate the possibility of judicial discretion." If that was ever true, it is no longer true. It is not the view of Keith Whittington or of Randy Barnett. Nor is it the view of McGinnis and Rappaport.
Fourth, Andy has picked up the new meme of nonoriginalist criticism of originalism. The old meme was, as I said, to dismiss originalism as "simplistic, stupid and evil." Since that criticism is no longer viable, we have the new meme: there are so many versions of originalism, that it no longer has meaning.
Fifth, the different versions of originalism is a challenge, but it is also a resource. Originalism has been developing increasing sophistication as a theory. The new versions have greatly contributed to its power. But that does not mean that they all will persist. Originalists will debate these issues and some versions will fall out. Over time, there may come to be more agreement over what originalism means. One way that this can occur is if some views, which now claim to be originalist, are viewed by most originalists as a mixture of originalism and nonoriginalism.
If a world where so many people want to claim the mantle of originalism is a crisis for originalism, well as an originalist I say, bring the crisis on!
Posted at 8:00 AM