Originalism all the way down: Or, the explosion of progressivism

Canadian Journal of Law and Jurisprudence (forthcoming)
  Copy   BIBTEX


It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation for rulings. At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and statutes. Whenever the meaning of a ruling, or some part of it, is not immediately apparent — maybe because the still-standing precedent is decades old and written in a manner that would now be anachronistic, or because the Justice writing the opinion was laconic — should we try to discern what the Justices intended or meant to say? Should the guide, instead, be what a reasonable person would understand by the text at the time of the promulgation of the relevant ruling? If the ruling still stands, but is decades old, shall we breathe life into it by reading it in accordance with contemporary values? Shall we make use of records of oral argument, or what Justices may have said extra-judicially, or will we restrict ourselves to the text of the ruling alone? In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions — variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation — appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court. I argue that these two theses — the progressive thesis and the doctrine of judicial supremacy — are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent. In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism — not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.



    Upload a copy of this work     Papers currently archived: 79,826

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Constitutional interpretation: Originalism.Jeffrey Goldsworthy - 2009 - Philosophy Compass 4 (4):682-702.
Constitutions, originalism, and meaning.Brian H. Bix - 2011 - In Grant Huscroft & Bradley W. Miller (eds.), The Challenge of Originalism: Essays in Constitutional Theory. Cambridge University Press.


Added to PP

58 (#215,055)

6 months
1 (#479,713)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Peter Jaworski
Georgetown University

Citations of this work

No citations found.

Add more citations

References found in this work

No references found.

Add more references