Lawrence Rosenthal (Chapman University- School of Law) has posted Originalism in Practice (Chapman University Law Research Paper No. 11-01) on SSRN. Here is the abstract:
Originalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits oforiginalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in practice, it provides a genuinely originalist vehicle for deciding real cases – that is, deciding cases by reference to the meaning of constitutional text as historically fixed at the time of framing and ratification when nonoriginalists would decide them otherwise. Yet, the scholarly literature to date makes no effort to address that question. This article aims to fill this gap by assessing how originalist interpretations of the Constitution fare in practice. In light of the ascendency of originalism, this article offers what may seem a surprising claim – when originalist arguments are actually deployed in real-world litigation, they rarely prove able to an approach to constitutional adjudication meaningfully different from nonoriginalism.
Nonoriginalists, no less than originalists, regard constitutional text as binding. The nonoriginalist claim is that the broad, open-ended provisions of the Constitution are properly construed to have evolving content. Originalists, for their part, grant that the Constitution contains much vague or ambiguous text, even when assessed in light of its original semantic meaning. Some originalists rely on framing-era practice or understandings to reduce the scope of textual vagueness or ambiguity subject to nonoriginalist construction, but in practice, this approach is deeply problematic. There is no authentically originalist methodology for evaluating claims that changed circumstances render reliance on framing-era practice or understandings – that is, the original expected applications of constitutional text – obsolete or irrelevant. Other originalists embrace a framework originalism that treats the original meaning of text as binding only at the level of generality found in the text itself. In practice, however, this approach is indistinguishable from nonoriginalism.
The paper concludes with a survey of recent, ostensibly originalist decisions of the United States Supreme Court confirming that in reality, these decisions consistently turn on nonoriginalist considerations. Originalist adjudication is rather like the Loch Ness Monster – much discussed, but rarely encountered.