The debate over the proper method of constituting remains hotly contested in the 21st century. While the division between practices of constituting is hardly dichotomous, the popular discourse around the subject usually revolves around two methods: those of Originalism and the Living Constitution. Support for the former, on one hand, is typically associated with political conservatism, while endorsement of the latter is tied to political liberalism, on the other. Yet, according to some constitutional scholars, the distinction between Originalism and the Living Constitution and its political implications is based on faulty premises. Robert Post and Reva Siegel challenge the notion that Originalism favors an apolitical approach to constituting while the Living Constitution uniquely presents an “activist” method. Rather, according to the two scholars, Originalism emerged as a tool of political mobilization for conservatives following the success of the Warren Court in advancing liberal initiatives. Post and Siegel are not interested in addressing the legitimacy of Originalism on grounds of jurisprudence; rather, they are focused on the process by which Originalism has attained its position in both popular and legal discourse, a process whose examination reveals its mischaracterization as apolitical. In providing such analysis, Post and Siegel offer a succinct account of how Originalism has appeared as a potent force for political mobilization, far from its purported apolitical nature, as well as how progressives can respond to the conservative legal revolution by constructing a similar, more robust vision.
Post and Siegel starts off their analysis by describing Originalism as a “central organizing principle for the Reagan Justice department’s assault on what it regarded as a liberal federal judiciary.” (Post and Siegel, 545) Largely, Post and Siegel claim, the ideas behind Originalism or “original understanding” have been present in American constituting since the early days of the Republic. However, the extent to which the Rehnquist Court extended the practice was unprecedented. To the Rehnquist Court and its supporters, methods of constituting apart from Originalism were not only incorrect in their application, but were thoroughly incompatible with the tradition of the American judiciary. This “methodological exclusivity,” as Post and Siegel refer to the Originalism of the Rehnquist Court, was groundbreaking and rhetorically effective, and provided a strong claim against the Warren Court’s actions (Post and Siegel, 547).
The distinguishing aspect of the Rehnquist Court’s call for original understanding was its nakedly political ambition, Post and Siegel argue, which involved provocation of the electorate along with the legal profession. The two scholars argue that the efficacy of contemporary Originalism is “due chiefly to its uncanny ability to facilitate passionate political participation.” Post and Siegel offer the popularly espoused conservative derision of “judicial activism” as evidence of the political underpinnings of Originalism, by referring to comments made by Edwin Meese, Reagan’s attorney general. Meese deemed Originalism a wedge against the “drift back toward the radical egalitarianism and expansive civil libertarianism of the Warren Court,” that had the potential to “be a threat to the notion of a limited but energetic government.” (Post and Siegel, 556) Here, Meese has laid bare the motives of the Reagan administration, as to further its political objectives through two actions (in particular the second one) that are common identifiers of a conservative political persuasion. If the Originalism pursued by the Rehnquist Court was truly about protecting the Constitution’s “original meaning,” as set forth by the ratifiers, then “conservative commitments” embraced by supporters of the aforementioned doctrine would not be associated with it. That is, American political conservatism is uncorrelated to the principle of original understanding, yet the latter is used to advance the goals of the former. Post and Siegel’s argument here is cogent, as it distinguishes between “political originalism,” which was pursued by Reagan conservatives, and the doctrine of original understanding, which states that the Constitution’s legal authority is derived from the framers and ratifiers of the document. Post and Siegel assert that while the specific jurisprudence of Originalism is concerned with original understanding and its implications for modern constituting, the political manifestation of Originalism is not. Instead, political originalists emphasize values which have little to do with constitutional interpretation, such as “preserving the traditional family.” (Post and Siegel, 560)
Yet, perhaps Post and Siegel’s most compelling argument for re-defining Originalism rests on the scholars’ call for progressives to mobilize in a fashion similar to conservatives. In particular, the two authors point out that political originalists have seized upon the idea of “collective memory,” which refers to the shared history of a people across generations. Endemic to the doctrine of political originalism is the idea that particular, conservative values rise above debates over constitutional interpretation. Therefore, those values are a fundamental aspect of our constituting, as they guide legal decision-making from the mantle of “original understanding.” By referring to the past as a simpler, less labyrinthine world full of legal wrangling, political originalists have effectively mobilized popular support for their values through a legal appeal. Originalism as a stand-alone doctrine focused on constitutional interpretation is hardly galvanizing, but political originalism as delineated by Post and Siegel consists of “a fierce drive to inhabit a particular imaginative reconstruction of the past.” (Post and Siegel, 561) As a result, the utterance of Originalism today immediately bears to mind American conservative values. Supreme Court Justice Clarence Thomas plainly described the conservative ambition beneath the veneer of Originalism, stating that “conservatism…reflects a belief in the good sense and decency of the American people and, hence, in freedom as the main source of all that is good politically.” (Post and Siegel, 563) Liberals, on the other hand, have consistently put their faith into the actions of judges and stare decisis as furthering their political ambitions, rather than the Constitution itself. By seizing upon the language of the Constitution as profoundly American and other methods of constituting as “other,” conservatives have successfully promoted their ideas as not only logically coherent, but traditionally “American.” In sum, Post and Siegel argue, the debate over constituting is almost entirely political, and it is liberals’ turn to find powerful images that will frame their goals within an American ideational struggle. Such a claim is consistent with extant concerns with the Democratic Party’s difficulty in motivating its electorate beyond the legalese of specific policies.
Post and Siegel’s stance is a profoundly cynical view of the interaction between the judiciary and American politics, yet it provides a useful way of characterizing the so-called “conservative revolution” that had its roots with the Rehnquist Court. By co-opting the jurisprudence of original understanding and conflating it with upholding politically conservative values, conservatives have rendered “Originalism” indistinguishable from political conservatism. The scholars’ argument is strongest where it frames the debate over constituting as not a dialogue over jurisprudence, but rather a dispute over “who we are” as a people. As Pitkin posited, a fundamental aspect of constituting, or constitution, is “a characteristic of life, the national character of a people, their ethos or fundamental nature…” (Pitkin, 168) Conservatives have understood this aspect of human nature and American history and values, while liberals have struggled to support their positions through defense of specific legal practices. Constituting is certainly not divorced from the importance of legal processes, but an oft-neglected element of its potency is rhetoric. The modern debate over methods of constituting reflects a battle over such rhetoric, with conservatives adopting Originalism as a tool of political mobilization. Liberals must find a viable analog to conservative judicial activism, perhaps by appealing to national identity within the framework of modern leftism.
Pitkin, Hanna Fenichel. “The Idea of a Constitution.” Journal of Legal Education, vol. 37, no. 2, 1987, pp. 167–169. JSTOR, JSTOR, http://www.jstor.org/stable/42892886.
Post, Robert C. and Siegel, Reva B., “Originalism as a Political Practice: The Right’s Living Constitution” (2006). Faculty Scholarship Series. 545-574. Paper 171.