Originalism is mostly an academic theory, discussed by law professors in law review articles and academic monographs. Occasionally, political scientists and historians join the conversation. But once in a great while, originalism enters public political debate. Historically, this entry was initiated by Attorney General Edwin Meese, but in the past two or three decades most of the public discussion of originalism has focused on the ideas of Justice Antonin Scalia, who wrote books, gave speeches, and wrote ferocious dissenting opinions--all of which garnered the attention of the media, public intellectuals, and the citizenry at large. Scalia's passing, and what seemed at one time as his almost certain replacement by a living constitutionalist, might well have resulted in a decline of public interest in originalism. Originalist scholars would have turned to the long-run strategy--building the intellectual infrastructure for an originalist revival at some point in the distant future.
Instead, the appointment of soon-to-be Justice Gorsuch to the United States Supreme Court has resulted in an unprecedented public dialog on originalism and living constitutionalism. Moreover, given the age of the most senior Justices, there is a significant possibility that an additional one, two, or even three originalists will join the Court. Gorsuch's appointment assures the originalism will continue to occupy center stage in public and judicial debates over constitutional theory. The appointment of two or more additional originalists to the Court would decisively shift the balance of jurisprudential power away from living constitutionalism and towards originalism as the dominant approach to constitutional interpretation.
This brings me to the idea of "constitutional time"--the idea that constitutional possibilities are sometimes open and sometimes closed, given the configuration of politics and the jurisprudential gestalt at any given point in constitutional time. During the highpoint of the extended Warren-Burger Court, "originalism" was not yet a word; it was coined by Paul Brest at almost the exact moment when the Reagan era began. Indeed, "originalism" was barely a concept, existing in nascent form in a scattering of articles and books by Robert Bork, Raoul Berger, and William Rehnquist, among others. Of course, originalism (the nascent concept) had an earlier "New Deal" incarnation--now remember primarily via the constitutional jurisprudence of Justice Hugo Black.
By the early 1980s, originalism had a name, a smattering of scholarly advocates, and political support from the Reagan administration. Nonetheless, in the legal academy, the conventional wisdom was that "originalism" was dead--killed by Paul Brest, a wooden stake driven through its heart by John Hart Ely, and then dismembered (as a precaution against "zombie originalism") by Ronald Dworkin and many others. Originalism was "dead, dead, dead." But unbeknownst to me (and almost everybody else), originalism was flourishing. A key development was the talk given by Scalia to the Office of Legal Counsel in the Department of Justice; Scalia argued that the "jurisprudence of original intent" was a dead end and urged a shift to "original public meaning" as the touchstone of originalist analysis.
Young lawyers from OLC became academics and developed what is now called "public meaning originalism." Gary Lawson at Boston University, Steven Calabresi at Northwestern, and Sai Prakash (now at the University of Virginia) were all key figures in the early 1990s. Michael McConnell produced important applied originalist scholarship, including a magisterial article demonstrating that Brown v. Board should have been an originalist decision. Others, including John McGinnis and Michael Rappaport, played key roles.
Another important development was the notion that a "New Originalism" had emerged, with key publications by Randy Barnett (now at Georgetown) and Keith Whittington (now at Princeton). These new originalists emphasized the distinction between interpretation (discovering the linguistic meaning of the text) and construction (giving the text legal effect) and conceded that some constitutional provisions may be underdeterminate, creating what I later dubbed "construction zones." Jack Balkin argued for a "living originalism." Further developments followed, including work by a younger generation of originalists including Will Baude, Chris Green, and Stephen Sachs.
As the intellectual infrastructure for originalism was developed in the academy, Justice Scalia continued to champion plain meaning textualism and public meaning originalism. On the statutory front, his accomplishment was monumental. One case at a time, one justice at a time, one statute at a time, Justice Scalia moved the Supreme Court's practice away from intentionalism (in its will-of-Congress form) and purposivism (the purpose the statute would have had if elected by an ideal "reasonable Congress") towards textualism. His progress on the constitutional front was not as dramatic, but it reached a high-water mark in District of Columbia v. Heller, in which a majority of the Court joined a public-meaning-originalist opinion that recognized an individual right to bear arms, and Justice Stevens wrote an ambiguous but mostly original-intentions-originalist opinion arguing that the intent of the Second Amendment was limited to the bearing of arms in state-organized militias. This moment represented the conjunction of the intellectual infrastructure of originalism and its demonstrated capacity to prevail in the Supreme Court.
But this constitutional moment (sorry, Bruce) was fragile. In McDonald v. City of Chicago, the Supreme Court declined the invitation to incorporate the Second Amendment via the Privileges or Immunities Clause of the Fourteenth. Even worse, Justice Scalia ridiculed Alan Gura for advocating an originalist approach. If originalists were elated by Heller, they were dismayed by McDonald. But McDonald revealed something even more fundamental. The fate of originalism in practice was dependent to an uncomfortable degree on one individual, Antonin Scalia. Of course, Clarence Thomas was also a committed originalist; his opinions were more consistently true to originalist principles that were those of the Justice whose office was next door. But Justice Thomas was not, by temperament, the kind of Justice who would crusade for originalism on and off the bench. So, when Scalia passed, there was a real question whether originalism would survive in more than vestigial form outside the academy. President Obama would surely appoint a committed living constitutionalist. When Senator McConnell announced that Merrick Garland would not be confirmed, a possibility that an originalist would replace Scalia was opened, but that door seemed to shut when Donald Trump clinched the Republican nomination and Hillary Clinton seemed sure to win the Presidency. Perhaps Clinton would renominate Garland; perhaps she would nominate someone even less open to originalist arguments, but with potentially four nominations in her first term, Clinton would likely have reshaped the Court in a way that would have resulted in an exile of decades for originalism as a contending position in constitutional practice. John Roberts is clearly not an originalist, and Samuel Alito, although affirming originalism as a theory, rarely writes opinions that have an originalist focus.
Contrary to all expectations, Hillary Clinton did not become the Forty-Fifth President, but nevertheless, things did not look good for originalism. Donald Trump had produced two lists of potential Supreme Court nominees. Many doubted that he would select a nominee from the twenty-one listed candidates, and of these, only a tiny few had a track record as originalists. On the morning of Tuesday, November 8, 2016, no one predicted that Neal Gorsuch would become the next Associate Justice of the United States Supreme Court. And on the morning of Wednesday, November 9, only a few would have predicted that outcome. But Neil Gorsuch was the nominee, and he was one of the few of the twenty-one who had a clear record of originalist opinion-writing and support for originalism in extrajudicial writings. There was hat no guarantee that the Gorsuch would be confirmed, although the smart money was on successful deployment of the nuclear option in the event of a filibuster. But Gorsuch was confirmed with a handful of Democratic votes. An originalist with an eloquent and forceful voice will join the Court on Monday, April 10, 2017.
And so, we arrive at a critical moment in constitutional time. Only a few months ago, many were trumpeting a decisive end to originalism. Originalism was about to be "off the wall" not "on the table." Instead, originalism is once again the focus of public and academic attention--the theory to beat. But this moment in constitutional time is not a moment of triumph for originalism. Instead, it is a moment of open constitutional possibilities--the future shimmers, with glimpses of alternative constitutional futures coming in and out of focus. In some constitutional futures, the constitutional gestalt shifts and originalism becomes the dominant mode of constitutional discourse, fundamentally altering our conception of the relationship of constitutional law and politics. In others, living constitutionalism regains the ascendency and the downward spiral of politicization that has infected the judicial selection process and even the Supreme Court itself continues apace. Where that spiral bottoms out, I do not wish to speculate. There is enough dread in the world.
Our constitutional future can only be seen through an hourglass darkly, and even our constitutional present seems uncertain, as the sands of constitutional time flow through. But this much seems certain: originalism lives.
