Updated Article: Back to the Future of Originalism

December 9th, 2012

Last week I presented my contribution to the Chapman Law Review’s symposium on libertarian thought at Larry Solum’s Advanced Constitutional Law Colloquium. I received some excellent feedback, and significantly reworked my paper. What was previously titled “Five Lessons from the Health Care Cases,” is now titled “Back to the Future of Originalism.”

The biggest changes were made in the section I wrote about popular originalism. I’ll paste that section in its entirety here:

 IV.  Popular Originalism? 

The unsettling of our constitutional gestalt between 2009 and 2012 may be attributed to two important, and interrelated factors inherent in the challenge to the Affordable Care Act: legal theories, and the social movements supporting them. I do not assert that the popular support for the challenge solely determined the constitutionality of the mandate. Nor do I claim that the theories of the commerce and necessary and proper clauses were adequate to render the mandate unconstitutional.

Neither approach was by itself enough. Here, the whole was greater than the sum of its parts. The popular constitutionalist movement, and the theoretical arguments were both necessary, but not sufficient conditions to advance the challenge. However both fronts, when engaged in tandem proved quite potent—particularly because the original understanding of the Constitution animated both avenues.

Originalism’s tug was felt in both aspects of this challenge. The legal arguments, though grounded in terms of the Court’s modern jurisprudence—acquiescing to many nonoriginalist precedents—gravitated towards an originalist understanding of enumerated powers, federalism, and individual liberty. Likewise, the social movement opposed to the law, embodied most prominently in the Tea Party, was organized loosely around an originalist vision of the Constitution.[1] In this sense, the two-pronged approach of popular constitutionalism and legalism were in the orbit of originalism, even if originalism was not at the fore of the challenge. This approach is similar to what Rebecca Zietlow has referred to as popular originalism.[2]

Indeed, some of the most successful constitutional movements in our nation harkened back to our foundational charter. The Abolitionist Movement, led prominently by Lysander Spooner cited the Declaration of Independence’s promise of equality, and the Constitution’s omission of any reference to slavery to support the legal argument that slavery was unconstitutional. Susan B. Anthony, leader of the Suffrage Movement, broadly read the 14th Amendment to guarantee equality to “all persons.”

In many respects, District of Columbia v. Heller could be understood as a product of popular originalism.[3] The legal theories that supported the individual right to keep and bear arms were supported by originalism. Likewise, the social movement buttressing firearm ownership—led most prominently by the National Rifle Association—waxed nostalgia for the liberties of the revolutionary-era minutemen.

What made the evolution of NFIB v. Sebelius so unprecedented, at least as far as constitutional challenges go, is the seamless union at all levels of government and the populace of the theories and the movement. The political and social climate in which this challenge came of age created a veritable perfect storm for this popular originalist case. Learning how to replicate this dual-focused phenomenon may be the most enduring lesson for future constitutional challenges.

[1] See Jared A. Goldstein, Can Popular Constitutionalism Survive the Tea Party, 105 Nw. U. L. Rev. Colloquy 288, 298 (2011) (“The Tea Party movement is a surprising hybrid of these two positions, a sort of popular originalism, a popular movement that purports to advance originalist interpretations.”).

[2] See Rebecca Zietlow, Popular Originalism? The Tea Party Movement and Constitutional Theory, 64 Fla. L. Rev. 483, 487 (2012) (“Finally, and perhaps most importantly, originalism and popular constitutionalism can lead in very different directions when determining the relationship between democratic participation and constitutional development. The popular originalism of the Tea Party raises the issue of whether it is possible to be faithful to the original meaning of the Constitution while engaging in democratic politics. If not, popular originalism could paradoxically lead to a reduction of the role of democracy in constitutional interpretation.”). See also, Jared Goldstein, The Tea Party Movement and the Perils of Popular Originalism, 53 Ariz. L. Rev. 827 (2011); Lee Strang, Originalism as Popular Constitutionalism?, 87 Notre Dame L. Rev. 253, 254 (“there is no necessary analytical connection or disjunction between” originalism and popular constitutionalism); Jamal Greene, Selling Originalism, 97 Geo. L. J. 658, 672 (2009).

[3] For a related, but different take on Heller’s popular constitutionalism, see Reva Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 192-193 (2008) (“ . . . Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. It situates originalism’s claim to ground judicial decisionmaking outside of politics in the constitutional politics of the late twentieth century, and demonstrates how Heller respects claims and com- promises forged in social movement conflict over the right to bear arms in the decades after Brown v. Board of Education.”).

Oh, one note about the title. I was trying to think of a witty way of capturing the fact that the originalism in NFIB v. Sebelius was in many respects grounded in notions of popular constitutoinalism. Then it hit me. Back to the future of originialism. Its a triple oxymoron, and pays homage to one of my favorite movies. So I did what I usually do when I think of something novel, and google it. I had previously thought of calling the article “Popular Originalism,” but an article by that name had already been published. So I googled “Back to the Future of Originalism.” Unfortunately, there were hits on Google for that title. Fortunately, it was from an article I wrote last year–which I had totally forgotten about. #JoshProblems.