“Certain things they should stay the way they are. You ought to be able to stick them in one of those big glass cases and just leave them alone.”
– J.D. Salinger, The Catcher in the Rye
In J.D. Salinger’s The Catcher in the Rye, the narrator, Holden Caulfield, walks through New York’s Museum of Natural History looking at the displays and musing about the reassuring stability of the past. A visitor could return to the museum any time, he thinks, and nothing would be different. “You could go there a hundred thousand times, and that Eskimo would still be just finished catching those two fish, the birds would still be on their way south, the deers would still be drinking out of that water hole, with their pretty antlers and their pretty, skinny legs . . . .” The past is fixed, reliable, unchanging.
Originalism—at least, in some forms—takes a similar view of constitutional meaning. To extend the analogy to natural history, we could say that originalism takes constitutional interpretation to be akin to paleontology. Once upon a time, during the ratification era, the dinosaurs of original meaning stalked the Earth. They are gone now, vanished from the public mind, and the task of the constitutional interpreter is to reconstruct them from the fossils and footprints left behind. We may err in our attempts, and future generations may do better—they may see that what we thought was a horn was in fact a toe. And there may be some aspects of the original meanings that are all but impossible to recover. What was the color of the scales of Due Process, or the feathers of Equal Protection; what the timbre of their roar? Still, right answers to these questions exist, and as our understanding progresses, we get closer to the single unitary truth of the past.
But things aren’t so easy. For most contested constitutional questions, historical analysis suggests there never was a single original meaning to answer them. There was no dinosaur—it would be more accurate to say that there were people standing around a pit throwing in fragments of bone. Those people imagined different dinosaurs, if they had a coherent vision at all.
This looks like a fatal problem for the originalist project. And it is—for some versions. There are now many types of originalism out there—thirty-one flavors, as Balkin puts it. There is popular originalism, in the mind of the ordinary person; there is political originalism, in the speeches of our leaders; there is academic originalism, in the pages of law reviews; and there is judicial originalism, in the practice of judges. Cross-cutting, in some ways, there is a distinction between thick originalism, which maintains that the past answers many important and contested constitutional questions, and thin originalism, which maintains that the past forecloses some arguments but often does not provide unique right answers.
The absence of dinosaurs is a serious problem for a fair amount of popular, political, and judicial originalism, though perhaps less so for academic originalism. More generally, it is a problem for thick originalism. The sort of originalism that tells us the past gives us unique answers that judges must embrace or stand forsworn—that originalism, as Mitch Berman memorably put it, is “bunk.”
Or at least, it is bunk if we evaluate it on its own terms. One of the great achievements of Memory and Authority is to suggest that those who maintain that they are practicing this version of originalism are doing something rather different. Balkin actually rescues originalism from objections often thought fatal, though in the process he reconceptualizes it in a way that self-professed originalists might not embrace.
If we compare what originalists do to what they say, originalism generally does not come out well. Originalist judges tend to be selective: they are deeply interested in history on some issues—the Second Amendment, for instance, or the Establishment Clause. They are largely uninterested in history on others—the Speech Clause for instance, or, with rare exceptions, affirmative action. Originalist politicians and law professors tend to make the past a moving target. Early generations of originalists deployed the methodology to condemn Brown v. Board; then, as social change cemented the decision’s place in American constitutional law, originalists switched to arguing that history demanded Brown. Similar patterns exist with sex discrimination; they are even developing with same-sex marriage.
In response to the indeterminacy of history, some judges manufacture a univocal tradition from the multivocal past. Some scholars propose rules that will produce a single interpretation they can call original public understanding, even though it may not be an understanding held widely, or even at all. But sticking the label “dinosaur” on a collection of bones held together by presumptions and overreadings does not make it so.
Worse, there is a pattern to these deviations from originalist creed. All of them—the selectivity, the changed arguments, the overconfidence, the manipulation of history, the counterintuitive definition of original understanding—tend to support outcomes that fit with the agenda of political conservatives at the time. If we evaluate judicial or political originalism on its own terms—if we adopt an internal perspective—it’s a disaster, an unsatisfying theory that’s applied only when politically expedient. The theory that was supposed to destroy the fickle and policy-driven forces of the Living Constitution ends up joining them: originalism and the Living Constitution turn out, as Balkin puts it, to be “twins[,] separated at birth.”
All of these problems go away, though, if we take an external perspective. Rather than starting from the premise that originalism is the one true methodology for a faithful judge and seeing how far short its practitioners fall, we can start with what originalists do and let practice tell us what originalism is. An assessment of practice reveals that what people call originalism is better understood as an appeal to ethos or tradition, one of the standard modes of constitutional argument. Since it is one of several modes of argument, we would expect it to be deployed when it is useful and not when it is not. We would expect it to be marshalled in support of different positions as time passes. We would expect it to have different weight in different contexts. All of those features are normal aspects of the modes of constitutional argument; they are fatal flaws only for a theory that is supposed to be exclusive and binding. But originalism’s claims to be those things are best understood not as an accurate description of the theory but as rhetorical flourish enhancing a standard appeal to tradition. Originalism seems like a bad dog, we might say, only because we haven’t realized that it’s actually a perfectly good cat. The main problem is really just a lack of candor or self-understanding.
This understanding of originalism advances the debate, which is a considerable achievement. It shows that most of the theoretical arguments about originalism start from mistaken premises, because they accept originalism’s self-understanding rather than examining how it actually operates. So, suppose we accept this account, as we should: what follows?
We should understand that history does not provide an authoritative answer to most contested constitutional questions. With those questions, we are in the construction zone, and history can provide insights, but it does not control decisions. To put it (for the last time) in terms of dinosaurs, we are trying to make something from the pile of bones history has left us, understanding that while that pile may support some constructions and undermine others, we are building for the future and not reconstructing the past. For that purpose, history can be a guide but not a master.
Adopting this perspective lets us consider the fixity of the past from a slightly different perspective. A changing past is a problem for originalism as (most) originalists understand it, but perhaps not for originalism as Balkin reconceives it. It is a problem for originalism as a dog, we might say, but not for originalism as a cat. A changing past might be a normal feature of historical argument, though one we have not yet given sufficient attention. That is the path we will go down, and what we will argue here is that the past is indeed not fixed. It is ever-changing, for at least three related reasons. First, the past that we see is always colored by the felt needs of the present. And as the felt needs of the present change, the perceived past changes too. Thus, changes in the present change the past.
Second, the past accretes. As history moves on, the present becomes the past. New past can change old past: how we understand a document or an event is affected by what happens after. In particular, we will argue, this effect interacts with the first one: if there is something the present needs to find in the past, that need may fasten on different elements as new alternatives appear.
Third, and as a consequence of the first two effects, the significance of arguments about the past changes. An understanding of that past that has certain consequences or implications at one moment in time may have quite different implications later, because of new elements that have entered the past.