Selling Originalism
Abstract
The legal academy has been unkind to originalism. Legal scholars have leveled withering criticism at originalists, maintaining that their faith in judges' abilities to divine historical intent and meaning is facile and that their underlying account of democratic authority is theoretically impoverished and insufficiently attentive to actual constitutional practice. Yet originalism is itself a robust part of that practice and as a political aesthetic is at least as healthy today as it was when Justice Scalia joined the Court in 1986. This Article considers the import of originalism's practical success for nonoriginalist constitutional theories. To the extent that such theories rely on sustained public acquiescence as a legitimating criterion for constitutional interpretation, the capacity of a methodology to translate political ends into the language of constitutional law should be of great interest. Nonoriginalist theories that rely on the legitimating power of public acceptance must account for originalism's political success as an important part of their theories of constitutional change rather than as an unfortunate exception to them. I sketch an exemplary model of originalism's political success that is placed in market terms. I suggest that proponents of originalism have taken advantage of a democratization of the market for constitutional methodologies that has placed a premium on populist selling points such as simplicity, class-based critiques of judicial elites, and nativism. Developing similar and richer models of the political success of constitutional methodologies will help to round out heretofore underspecified theories of how constitutional change occurs outside of the Article V process.