Legal Commentary

Is Originalism for Progressives?

By Jonathan H. Adler

In remarks at this weekend?s annual convention, American Constitution Society executive director Caroline Fredrickson reportedly characterized originalism as a ?choking weed,? part of a ?noxious brew? of ideology promoted by the Federalist Society.  Was this remark a categorical rejection of originalism, or simply a rejection of those modes of originalism employed by conservatives?  Her reported remarks sound like the former, and yet this interpretation would imply a rejection of many important progressive legal scholars who have taken up the originalist mantle.

Without doubt, originalism is more often associated with conservatives than liberals.  Yet originalism has been championed by libertarians, such as our own Randy Barnett, and progressives, such as Yale?s Jack Balkin and Akhil Amar.  Balkin, who spoke at this year?s ACS conference and co-edited the ACS-sponsored book The Constitution in 2020, has argued on his blog that originalism is for progressives (drawing upon the work of Douglas Kendall of the progressive Constitutional Accountability Center and the University of Virginia?s James Ryan), and much his recent work  (see, e.g., here and here) has sought to make originalism a progressive force in constitutional law.  So the question is whether originalism itself is a ?choking weed,? or just when practiced by conservatives.

Note: For a somewhat related post on some of the differences between the Federalist Society and ACS see here.

Full post as published by The Volokh Conspiracy on June 21, 2010 (boomark / email).