Originalism may be preoccupied with the views of Americans who died centuries ago, but the debate over its merit as an approach to constitutional law is lively as ever.
At the Federalist Society's National Student Symposium in February, “Originalism 2.0,” the University of Pennsylvania Law School chapter of the Society brought together scholars from across the country to discuss originalist interpretations of the U.S. Constitution. Panelists included Penn Law professors Stephanos Bibas and Kermit Roosevelt, and their fellow faculty members Amy Wax and Christopher S. Yoo each moderated a panel.
Saikrishna Prakash, a professor at the University of Virginia Law School, opened the discussion by defending originalism against the charge that it is solely a tool of the conservative movement. “It's not a handmaiden of the Republican National Committee or the Tea Party movement,” he said. The only way to meaningfully interpret the U.S. Constitution, according to Prakash, is to follow it according to the intent of its authors. “The very idea of a fixed meaning is contradictory to the principles of a living Constitution.”
Richard Fallon, professor of constitutional law at Harvard Law School, was less forgiving. When originalism was first propounded in the 1970s, he said, it was “understood that it would have a conservative valence.”
Even in the founding era, Fallon argued, educated people disagreed over exactly what was protected by some parts of the Constitution. As a result, “most originalists don't have very specified theories,” which makes originalism even more useful for rationalizing a particular political agenda.
Conservatism and originalism can be teased apart, countered Keith Whittington, professor of politics at Princeton University. “We'd be fooling ourselves to think that any contemporary movement would fit perfectly with the ideas embedded in a 200-year-old document,” he said. Judges and lawyers shouldn't expect the Constitution to provide all the answers they'd like, Whittington added, but neither should they skew what they know to be the original intent of the founders.
Mary Anne Case, a professor at the University of Chicago Law School, prefaced her comments with the observation that she held, as a female scholar, rights that “original intent would not allow me.” Abigail Adams's famous plea that the founding fathers “remember the ladies,” was ignored, according to Case; women were “not just passed over, but specifically left out” of the political society envisioned by the founders.
The rules that the Constitution authors originally intended for women “are not rules that I want to live with,” Case told the audience.