As you may have heard a thing-or-two about, we’re in the
middle of a Supreme Court nomination. In the debate surrounding Amy Coney
Barrett, there has been a ton of discussion on how much of an originalist she
is. So -- what exactly is an originalist?
The answer is complicated. However, if you’d like to get
more informed on this theory of constitutional interpretation—and Amy Coney
Barret’s place within it—the following resources are a great place to start:
Influential Originalist Texts
Antonin Scalia, A Matter of Interpretation: Federal
Courts and the Law (1998).
As perhaps the most famous originalist, Scalia’s book
outlining his judicial philosophy (and responding to critics) is a great place
Robert H. Bork, Neutral Principles and Some First
Amendment Problems, 47 Ind. L.J. 1 (1971).
Robert Bork, most famous for nearly being a Supreme Court
Justice, is one of the most influential originalist scholars. This law review
article is an early landmark in the development of originalism.
Raoul Berger, Government by Judiciary (1977).
Raoul Berger was a law professor and, rarely enough, a democrat.
His book had an “explosive effect on constitutional debate in the late 1970’s
and 1980’s” (37. O’Neil, Originalism in American Law, pp. 123–124.) and argues
for an extremely strict form of originalism and judicial restraint.
History of the Movement
Lawrence B. Solum, What is Originalism? The Evolution of
Contemporary Originalist Theory, Georgetown University Law Center (2011), https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2362&context=facpub.
This article provides a great overview of how originalism
began and has developed overtime.
Eric J. Segall, Originalism as Faith (2018).
This book will earn a second spot on this list under
“Critiques of Originalism.” However, chapters 4-6 provide a fair and thorough
history of the movement.
Ilan Wurman, A Debt Against the Living: An Introduction
to Originalism (2017).
This book explores the history of originalism, as well as
the Founding Father’s views of constitutional interpretation.
Originalist Supreme Court Opinions
D.C. v. Heller, 554 U.S. 570 171 L. Ed. 2d 637 (2008).
This gun control case, one of Scalia’s most famous opinions,
tackles the issue from an unabashedly originalist perspective.
Marsh v. Chambers, 463 U.S. 783 (1983).
This first amendment case decided whether the use of a
chaplain in the Nebraska state legislature violated the Establishment Clause of
the First Amendment. The majority opinion, written by Chief Justice Warren
Burger, relies heavily on history by tracing chaplaincy in the legislature back
to the First Continental Congress.
Critiques of Originalism
Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L.
Rev. 1 (2009).
“The most common hard arguments contend that originalism is
entailed either by intentionalism or by binding constitutionalism. Soft
arguments claim that originalist interpretation best serves diverse values like
democracy and the rule of law. I seek to show that the hard arguments for
originalism are false and that the soft arguments are implausible.”
Paul Brest, The Misconceived Quest for the Original
Understanding, 60 Boston Univ. Law Rev. 204 (1980).
This critique of originalism was massively influential, and
led to the development of “new originalism” in order to refute it.
Eric J. Segall, Originalism as Faith (2018)
Chapters 7 and 9 of this book argue that Scalia and Thomas’
originalism is a justification for their preferred policy choices, rather than
a theory of constitutional interpretation that they consistently follow.
Amy Coney Barrett and Originalism
Amy Coney Barrett & John Copeland Nagle, Congressional
Originalism, 19 U. Pa. J. Const. L. 1 (2016).
This article analyzes how an originalist judge should handle
non-originalist Supreme Court precedent, as well as establishing that “the
original public meaning of the Constitution is the law.”
Amy Coney Barrett, Countering the Majoritarian Difficulty,
32 Cont. Comm. 61 (2017).
Here, Barrett reviews a book focusing on what level of deference courts
should give to the legislature. Towards the end, however, she speaks in-depth
on her views of originalism: “The Constitution’s original public meaning is
important not because adhering to it limits judicial discretion, but because it
is the law. And because it is the law, judges must be faithful to it.”
Posted by Andrew J. Wisniewsky on Thu. October 22, 2020 1:00 PM