San Diego Law Review
Much has been written about originalism - the idea that the Constitution should be interpreted according to its original meaning. This Article goes beyond previous works by asserting that originalism may be nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court's decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline. This Article further differs from previous works concerning originalism. First, the essay shows that originalism is a radical departure from the Supreme Court's well-established jurisprudence of a living Constitution. From its very inception, constitutional law has been a dynamic process of creativity and the vast majority of Supreme Court decisions interpreting the Constitution have been non-originalist in their methodology. Originalism cannot explain the large body of constitutional doctrine that has developed over the years since the Constitution was adopted. The Article also focuses on fundamental flaws of originalism neglected in other works. At the most fundamental level, originalism misperceives the nature of history by presuming that it has an objective meaning that can be discovered through assiduous study of ancient material. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one's mind. Originalism, therefore, cannot eliminate the necessity of making value judgments to interpret the Constitution. Rather, it obscures the policy-making function of constitutional interpretation by pretending that the meaning of constitutional provisions can be recovered from historical annals. There is also a serious question of whether past understanding of the Constitution can be meaningfully transposed from one generation to another. Whatever the original meaning of the Constitution may once have been, it was formed in the context of a past reality and in accordance with past attitudes, both of which have changed considerably since the Constitution was drafted. Blindly following the presumed original meaning of constitutional provisions formulated in reaction to past conditions and attitudes that have long since changed is dysfunctional, an instance of cultural lag whereby the meaning of the Constitution is left dormant while the world around it changes. Heller displays all of the flaws of originalism. It succumbs to the illusion that the original meaning of the Second Amendment has an objective existence that can be recovered by studying the past. In falling prey to this illusion, Heller perpetrates a pretense of objectivity that functions as a facade for policy-making. Moreover, Heller refuses to consider that the world around us has changed and that whatever meaning the Second Amendment may have had when it was adopted in 1791 cannot simply be transposed to the present. Heller reveals the fundamental failure of originalism; based on an illusion and dismissive of reality, originalism cannot sustain a viable constitutional jurisprudence.
Jeffrey M. Shaman,
The End of Originalism,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol47/iss1/3