In the Federalist Society Review, Jonathan O'Neill (Georgia Southern – History): A Deeper Originalism: From Court-Centered Jurisprudence to Constitutional Self-Government. Here is the introduction:
Originalism has substantially reoriented constitutional discourse since it first reemerged in response to the Warren Court of the 1960s. A measure of its success is that today interpretation is typically treated as the process of discerning what the constitutional text meant to those who created it—no longer do we much hear that interpretation is fundamentally something else. Originalism has also come to better acknowledge that original meaning will not always be clear or available to answer contemporary questions. The theory has arrived at this point due to several now well-recognized developments from the last few decades that need only be briefly restated here. After having done so, this article will consider the challenges originalism currently faces and the resources in the contemporary theoretical environment it might call on to become a more fully constitutional theory that reaches beyond lawyers, judges, and courts. A deeper originalism points toward constitutionalism as form of political order that is oriented toward deliberative self-government. If originalism is to move in this direction, it must avoid the exploitation of judicial discretion as the entrée to judicial supremacy, first by reining in judicial “construction,” and then by revisiting the merits of intentionalism in interpretation. Finally, originalists should move beyond jurisprudence to rediscover the legislative virtues and to contribute more directly to the reform of Congress.
A deeper, more constitutional originalism would avoid overstating what can be achieved by originalist methods or courts as institutions. This direction would reconnect originalism with the opposition to judicial overreach characteristic of earlier figures such as Raoul Berger and Robert Bork. To be sure, originalist jurisprudence has made large advances on their pioneer efforts, but its initial goal was always to limit courts so that basic public policy on controversial issues would be made in legislatures, as the American founders originally intended. By better acknowledging its own limits given the Constitution’s separation of powers, this originalism would better consolidate the reorientation of legal interpretation it has achieved and simultaneously allow more constitutional space for legislatures as the primary forums for democratically legitimate decision making.
And in conclusion:
Originalism has successfully altered the landscape of constitutional jurisprudence and affected the direction of constitutional law since its initial reemergence in the last part of the 20th century. In the first few decades of the 21st century, it has responded to criticisms and made new advances. During this evolution, the theory has become more variegated and diffuse. Although originalism initially criticized the basis and scope of modern judicial review, gradually it has become more accommodated to the American practice of judicial supremacy. This development has raised questions about originalism’s overall purpose and direction as thinkers grapple with whether and how to constrain judicial discretion in the “construction zone.” That problem will have to be addressed in depth, and a more modest judicial role embraced, if originalism is to avoid becoming a new version of the judicially-updated living constitutionalism it first arose to contest. An originalism more concerned to constrain judicial discretion than to exploit it would return to the concept of intent as the core of legal meaning. It likewise would turn to the philosophical and constitutional defense of the representative and deliberative legislature. It is the institution originally designed to undertake the negotiation, deliberation, and compromise by which a free people makes law from its plural and contending interests. Accordingly, originalism would better serve constitutional self-government if its focus were widened to account for the legitimacy and authority of the legislature and the need to address the many ills of today’s Congress. An originalism renewed along these lines would accept that the discourse of jurisprudence and constitutional law is limited in its capacity to legitimately resolve political problems, and therefore conclude that less should be demanded of it. In doing so, originalism would be building on the deepest purposes of the first modern originalists, who sought to sustain the separation of powers and constitutional self-government by defending the prerogatives of the legislature from judicial overreach.
Note: Professor O'Neill is the author of Originalism in American Law and Politics: A Constitutional History (2005) and Conservative Thought and American Constitutionalism Since the New Deal (2023).
Posted at 6:52 AM