Pragmatic Orginalism?
There has been no more substantial change in constitutional law in the past twenty-five years than the ascendance of “originalism” as a fundamental way of understanding the Constitution. This quarter century is exactly the amount of time that I have been a lawyer, and the contrast between the presentation of constitutional issues today and the way they were taught when I was a law student is striking. While the extent to which the Supreme Court’s jurisprudence is in any true sense originalist can be debated, the sheer weight of originalism in briefs, arguments, and the rhetorical style of constitutional cases cannot be disputed. The scholarly literature is filled with claims about the bona fides of the originalist turn, questioning whether the Framers were themselves originalists or, more provocatively, whether the whole enterprise is “bunk.” Even among those inclined to credit the originalist turn, its application remains a source of dispute, as does the relative weight of different aspects of the Constitution in the originalist enterprise. And, if imitation be the highest form of flattery, the sheer intellectual weight of the originalist claim has prompted the emergence of the progressive alternative enterprise, a People’s Park comes to Philadelphia, if one will.
