Originalism is an ideology, not a practice. It is a brand, an affiliation, a set of background principles, an often unstated set of restorative commitments. As James Fleming says in his book, Fidelity to Our Imperfect Constitution, originalism is an "ism." As an "ism," Fleming writes, originalism did not exist before the 1970s: "Constitutional interpretation in light of original understanding did exist, but original understanding was seen as merely one source of constitutional decision-making among several-not as a general theory of constitutional interpretation, much less the exclusive legitimate theory."
This brief Comment on Fleming's book takes the practice Fleming identifies---"constitutional interpretation in light of original understanding," or what I will call CILOU---as its starting point. As masterfully as Fleming upbraids originalism as an ism, he wishes to leave untouched, indeed celebrates CILOU. What accounts for this normative disjuncture? Is it defensible? Fleming does not give us the resources to answer this question.
Fleming gives three reasons to be opposed to originalism. First, he finds it authoritarian and insulting. It insults the founders by suggesting that they would have insisted on our following their expectations, and it insults all of us in the here and now by "attributing to us, a self-governing people, a subservience to such founders' authoritarian, arrogant will." Second, Fleming objects to the idea, which he ties to originalism, that constitutional interpretation does not require the exercise of moral and political judgment. He argues that such judgments are both inevitable and desirable. Finally, Fleming believes that originalism rejects the idea of fidelity "as honoring our aspirational principles ... rather than as following our historical practices," which are imperfect. Fleming rejects the notion that the only way to honor the Constitution is to understand it in narrow historical terms.
Part I outlines two distinct ways of understanding the prominence of CILOU in U.S. constitutional interpretation. Its dominant manifestations are interpretive pluralism and the use of original sources to resolve ambiguity over relatively specific constitutional provisions. Part II shows that each of Fleming's criticisms of originalism applies to CILOU. Rejecting the ideology of originalism on the grounds Fleming urges seems to entail rejecting the practice of CILOU, which both originalists and nonoriginalists seem to accept. Part III suggests that Fleming's failure to account for the shortcomings of CILOU follows from the fact that his proposed moral reading is, like originalism, an ideology. It is an ism rather than a practice and so has more to say about how judges affiliate than about how they behave in the wild. Indeed, we can understand originalism itself as a moral reading whose attraction, like Fleming's own theory, depends on its power to persuade.
Constitutional Law | Law
A Nonoriginalism for Originalists,
B. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/662