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2 Geo. J.L. & Pub. Pol'y 599 (2004)
The New Originalism

handle is hein.journals/geojlap2 and id is 605 raw text is: The New Originalism KEITH E. WHITTINGTON* No version of originalism is going to be completely new. As a method of constitutional interpretation in the United States, originalism has a long history. It has been prominently advocated from the very first debates over constitu- tional meaning. At various points in American history, originalism was not a terribly self-conscious theory of constitutional interpretation, in part because it was largely unchallenged as an important component of any viable approach to understanding constitutional meaning. Originalism, in its modern, self- conscious form, emerged only after traditional approaches had been challenged and, to some degree, displaced.' At least initially, let me offer a fairly basic definition of originalism. Original- ism regards the discoverable meaning of the Constitution at the time of its initial adoption as authoritative for purposes of constitutional interpretation in the present. A number of variations on this basic theory are possible and have been advocated over time. The new originalism offers a different variation on this basic theory than the old originalism. The old originalism flourished from the 1960s through the mid-1980s. The new originalism has flourished since the early 1990s. I should note that my focus here is not on the actions and opinions of judges. Constitutional arguments drawing on evidence from the founding period are one of several forms of argument that can be found in judicial opinions, and judges often make use of that evidence whenever they find it helpful to advancing their position. But I have no particular illusions about the consistency or sophistication of constitutional theorizing on the bench, and judicial rhetoric and behavior is not my primary concern. My focus here is on developments within academic constitutional theory. I. THE OLD ORIGINALISM The old originalism came to greatest prominence in the 1980s with its explicit embrace by Attorney General Edwin Meese and the nomination of one of its most notable exponents, Robert Bork, to the U.S. Supreme Court in 1987. However, the political and academic debate over originalism was well advanced by then. As the Warren Court's rights revolution became increasingly controver- sial in the late 1960s, critics of the Court frequently recurred to original intent to ground their disagreement with the Court's innovative rulings. The tension was evident in an exchange between Senator Sam Ervin and Thurgood Marshall during the latter's confirmation hearings in 1967. Unsatisfied with Marshall's * Associate Professor of Politics, Princeton University. A version of this article was first presented at the 2002 AALS/APSA Conference on Constitutional Law. 1. For deep background, see generally Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the Living Constitution in the Course of American State-Building, II STUD. AM. POL. DEV. 191 (1997).

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