Originalism as Transformative Politics
UVA Law Faculty Affiliations
The debate between originalists and nonoriginalists has begun to suffer a fate similar to these earlier debates in constitutional theory and practice. This essay is one of a growing number of recent attempts to look back at the originalism debate now that both the critics and defenders of originalism have stated their positions and replied to arguments of their opponents. As originalism has been modified and defined in reaction to nonoriginalist critiques, the originalist's theory has become more and more plausible as a theory of constitutional interpretation. When I say plausible as a theory of constitutional interpretation, I mean that the most sophisticated forms of originalism provide an accurate description of the phenomenology of constitutional practice. The Constitution is interpreted in light of the purposes and concerns that animated its framing and ratification.
As a matter of the theory of interpretation, originalism captures an important aspect of constitutional practice. But the originalists have won a Pyrrhic victory. As originalism has been clarified in response to its critics, it has gradually become more and more evident that it has no force as a critique of constitutional interpretation as practiced by the Warren Court. Originalism has become indistinguishable from nonoriginalism. Quite to the contrary, I will argue that originalism can serve as the basis for what we might call transformative politics.