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06/13/2012

Keith E. Whittington: Is Originalism Too Conservative?
Michael Ramsey

Keith E. Whittington (Princeton University-Department of Politics) has posted Is Originalism Too Conservative? (Harvard Journal of Law and Public Policy, 34 (2011): 29) on SSRN's Accepted Paper Series. Here is the abstract: 

Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically interesting independent of its connection to conservative politics? This essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are often likely to find originalism to be a more normatively attractive approach to constitutional interpretation than liberals generally will. Focusing on originalist theory rather than judicial decision-making, this essay considers the ways in which originalism intersects with conservatism and the ways in which originalism might diverge from conservatism.

For what it's worth, in my view there's no greater obstacle to the broader acceptance of originalism than the perception that it's legal cover for conservative political results.  As Professor Whittington says, there's surely correlation between originalism and conservative political views, but the correlation is (or at least ought to be, if the originalism is done right) far from perfect.  The worst thing conservatives can do is to distort originalism to align it with conservative views when it really doesn't.  The best thing they can do is to celebrate the divergence of conservatism and originalism when it happens (that is, if they really believe in originalism as an end in itself and not as a tool).  So I invite my conservative friends, in the spirit of this essay, to find as many liberal originalist results as you can.  If you believe in originalism, that's what you should be doing.