Debates about constitutional originalism and its rival, living constitutionalism, are old. Originalists insist that the meaning of the United States Constitution is fixed. The words and phrases of the constitutional text have the same meaning today as they did when the Constitution was ratified by the requisite nine states in 1788 (or when each amendment was ratified). Living constitutionalists believe that the meaning of the Constitution must adapt to changes in values and circumstances. The two authors of the essays that follow clearly have different attitudes toward what is called originalism in constitutional interpretation. Lawrence Solum advocates a form of constitutional originalism; Robert Bennett’s views align with a version of living constitutionalism. But the essays reveal that this contrast shrouds a host of complexities, both in the definitions of the concepts and in approaches to interpretation. Together the essays provide an introduction to the contemporary debates about the role of original understanding in constitutional interpretation.
(p.viii) Though the term originalism is of fairly recent origin, tensions between an originalist approach and living constitutionalism have been evident for a long time. For example, in Home Building & Loan Ass’n v. Blaisdell, Justice George Sutherland dissented on originalist grounds: “A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time.”1 And Charles Evans Hughes, the chief justice, authored a majority opinion that echoes living constitutionalist themes: “If, by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning—‘We must never forget that it is a constitution we are expounding.’ ”2
Debates between originalists and living constitutionalists surface in ordinary judicial decisions but also in more structured debates among and between judges and commentators about judicial activism in constitutional decision making. There are many definitions of judicial activism, but a recurrent theme in much of the criticism of such activism is that activist judges are not really interpreting the Constitution. This was the launching pad for criticism of activism that Edwin Meese made in the 1980s when he was attorney general in the administration of Ronald Reagan. Meese did not use the word originalism—it had only recently been invented by Paul Brest, then on the Stanford Law School faculty—but both the idea and some of its ambiguities are evident in Meese’s criticisms. And since Meese’s foray, debates about originalism in constitutional interpretation have been a regular feature of both American politics and American academic discussion. The dueling essays of this book build on this flourishing literature.
The Reagan administration was, of course, identified with the conservative end of the contemporary American political spectrum. And in the years since Meese ignited (or reignited) debates about originalism and judicial activism, those who identify themselves as originalists have been predominantly conservative. As Solum’s essay suggests, however, there is nothing inherent either in originalism or in positions on judicial activism (p.ix) that needs to be identified with positioning on the political spectrum. Both Bennett and Solum are convinced that this is so regardless of how one is aligned in the clash of their views on originalism.
This counsels a more general point about the growing body of literature on interpretation in the law. The literature reflects many more than two positions. This exchange introduces the subject and explores a wide range of the salient issues. We hope that it prepares the serious student for exploration more broadly, with both basic understanding of what is at stake and sophistication about many of the intriguing questions along the way. (p.x)