Ozan O. Varol (Chicago-Kent College of Law) has posted The Origins and Limits of Originalism: A Comparative Study (Vanderbilt Journal of Transnational Law, Forthcoming) on SSRN. Here is the abstract:
In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader debates in the United States about the origins, functioning, and limits of originalism.
This comparative study calls into question the existing theories in the American legal literature about why originalism thrives in certain nations. This Article suggests a new hypothesis that views support for originalism as a cultural, not legal, phenomenon: Originalism blossoms in a nation when a political leader associated with the creation or revision of the Constitution has developed a cult of personality. The cult-of-personality hypothesis explains why originalism has thrived in nations such as Turkey and the United States, where the nation’s founders have developed a strong cult of personality, but has failed to find a strong and sustained following in nations such as Australia, where the founders are held in no special reverence.
The Turkish case study is also instructive on the limits of originalism. Critics of originalism in the United States argue that originalism allows the dead hand of the past to rule an evolving society. In response to the critics, originalists note that the legislature has the option of amending the Constitution if its original meaning no longer comports with societal norms. But what if constitutional amendment were not an available option? The Turkish case study suggests that when the legislature lacks a plausible method—however difficult it may be—for amending the Constitution in times evolving societal norms, the continued use of originalism by the judiciary may motivate the legislature to place political constraints on the courts. In Turkey, the Constitutional Court’s embrace of originalism but rejection of legislative attempts to amend the Constitution led to the adoption of a court-packing plan in September 2010.