Why the Right-Wing's Approach to Reading the Constitution Is Destroying This Country

America's deeply divided over how to interpret the Constitution. Originalism, the view that judges should interpret the Constitution by discovering the original intent or the original meaning of the text, has a strong hold on the public. Yet the opposing view, that judges ought to interpret the Constitution as a living document and read it in light of contemporary values or an evolving tradition, is also well entrenched in American culture. Not surprisingly, support for originalism is strongest among Tea Party activists, conservatives, and Republicans. Although the vast majority of legal academics are not originalists, the theory of originalism has never been stronger among law professors. Indeed, originalism now has adherents not only among conservative but also liberal legal scholars. There is really only one group in American society that remains largely immune to the lure of originalism: historians.

At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. One might attribute the resolute anti-originalism of most historians to the fact that they are generally more liberal than the population at large and thus oppose originalism for political reasons. Although political orientation may account for some of this animus, their hostility to originalism has less to do with politics and more to do with questions of historical interpretation and method. When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”

Originalist constitutional theory developed during the Reagan years as a critique of activist judges. Its theorists argued that a jurisprudence focused on the original intent of the Founders would serve as a means of limiting the discretion of judges. This theory proved controversial from the start and was subjected to a number of withering criticisms. One of the many problems with the theory stemmed from its shaky historical foundations. Simply put, the Founders did not speak with a single voice on most constitutional questions. Thus, traditional originalism collapsed as evidence accumulated that the Founding generation disagreed on most of the major constitutional issues they confronted. If Madison and Hamilton could not agree on how to interpret the Constitution, how could modern judges claim to have found an objective means to discern the true meaning of its text?

“New Originalism” has grown over the last decade, largely spurred by right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics. In contrast to traditional originalism, new originalism emerged at a time when the Supreme Court was dominated by a conservative majority, as it is today. The goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives. (A few liberals have embraced a version of this theory, hoping to use it to revive and expand aspects of the Fourteenth Amendment, but this is a small minority within the originalist movement.) For right-wing scholars and judges, new originalism serves as a type of constitutional camouflage. It allows “conservatives” to create their own living constitution and advance a form of judicial activism, while claiming to be simply engaged in an act of constitutional redemption.

New originalism eschews a focus on original intent and instead concentrates on the public meaning of the Constitution. Yet, if one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.