Originalism: Historic and Philosophic Roots

Originalism has been with us from the very beginning. In fact, I think it's fair to say that originalism was the sort of the natural and default position of interpretation for most of American history. It's really only in very recent times that non-originalism has even gotten a hearing. I think it's much easier to say that non-originalism is a pretext for liberal results than it is the opposite. I sometimes begin my seminar on originalist interpretation with a speech by Justice Robert Jackson when he was Solicitor General under Franklin Roosevelt. And he calls for a return to the original meaning of the Constitution, you know, at the height of the New Deal. And he is the New Deal lawyer. At that time, it was the conservatives who were violating principles of originalism and striking down features of the New Deal that were not unconstitutional. So you know, originalism may appeal at one particular time to one side of the political spectrum or the other. But it's enduring logic has nothing to do with either conservative or progressive ideology, it has to do with the basic idea of Constitutionalism, which is that the people set forth the basic rules of government, leaving most matters to the democratic process, and then the court's job is to enforce the law, not to make it.