A cool new article in the Harvard JLPP titled “Pre-‘Originalism’” by some good friends, Lorianne Updike Toller, J. Carl Cecere, and Justice Don Willett. Here is the abstract:
The ongoing debate over Originalism begs the question of historical legitimacy. All sides have tried to claim that their preferred method of analysis has a stronger historical pedigree by attempting to show that their theory has been adopted by the ultimate constitutional arbiter — the United States Supreme Court. Yet scholarship on this topic has largely been selective and episodic, focusing narrowly on a few specific examples from a few famous Supreme Court cases. Furthermore, those who have studied anecdotal evidence have largely taken Justices’ claims at face value, without discovering whether the justices’ claimed and practiced methodology actually aligned. And research is all-too-often overtly biased, ignoring any evidence that might contradict, or at least complicate, the analysis.
This article seeks to overhaul this debate, by analyzing the historical pedigree for various modes of constitutional interpretation using a systematized, quantitative and qualitative analysis of the Supreme Court’s cases of “constitutional first impression” — those occasions on which the Court has approached individual parts of the Constitution for the very first time. In hopes of compiling unbiased, randomized, and controllable data to help answer this question, we performed a quantitative, data-driven review of these 96 cases of constitutional first impression, which span the Court’s nearly 220-year history from 1789-2005.
Our results showed that the historical Court did lay claim to relying on the intention of the Framers in their interpretation of the Constitution, placing them today in what would be the Intentionalist camp. Yet our qualitative and quantitative data undermines the Court’s claimed intentionalism, albiet for different reasons at different times. In the first century, the Court claimed to — but did not actually — rely upon Framing Intent as it is currently understood. Perhaps this was because the Court was using a common law method of interpretation, or because it had adopted a “Whiggish” view of the Constitution’s history.
In the second century, on the other hand, the Court did rely more upon specific primary Framing-era sources to support its supposed Intentionalism. Yet the Court also relied more upon secondary sources that complicate the picture, including many that demonstrate a trend towards Living Constitutionalism.
We therefore believe the conclusion that the Court adopted any form of Originalism before the modern advent of the term, to be wrong. It is not possible to say the Court actually engaged in Originalism until the Warren and Burger Courts. This is ironic, given that it was the Warren and Burger Courts that were most often accused of avoiding Originalist interpretation. But this was the era in which the Court finally started to make good on its commitment to relying on the intent of the Framers by citing to them and their documents with consistency and proportional frequency.
Although our study has focused only on cases of constitutional first impression, because it constituted a randomized, inclusive, and representative sample of the Court’s constitutional interpretive methodology over the course of its history, we maintain that our findings may be generalized.
I read an earlier draft of this article. It makes an important contribution to understanding what originalism was before there was “originalism.” In the past, I have described Justice John Marshall Harlan I as a “proto-originalist.”