Monday, January 20, 2014

Jack Balkin
I have posted my latest essay, Why are Americans Originalist?, on SSRN. It is an attempt to explain to non-Americans why originalism has such influence in American federal constitutional argument but lacks a similar degree of influence in the interpretation of the constitutions of other democracies, or even in the interpretation of the fifty American state constitutions. The answer is that originalism is a feature of American national culture, deeply connected to narratives of American national identity. Here is the abstract:
American originalism is primarily a nationalist idea. It arises from distinctive features of American cultural memory -- namely, that in popular imagination the American nation was created by Americans themselves through a self-conscious act of political revolution, and that the American nation, people, and constitution came into being more or less simultaneously through this initial act of self-creation. A similar story is not told in most other political cultures. This story has helped encourage Americans’ special veneration of the founding generation and particular figures within that generation (like George Washington and James Madison) as culture heroes.

...Americans use originalism as a political practice for critiquing the status quo (whether in a liberal or conservative direction) and arguing for change, sometimes quite radical. Appeals to origins serve as a precedent-breaking device -- they help justify a break from current practices by appealing to an even older tradition. This explains a little-understood fact about American originalism. The originators of originalism as a self-conscious approach to interpretation were not movement conservatives -- they were New Deal liberals. The increase in citations to originalist materials in Supreme Court opinions begins with Justice Hugo Black and the Warren Court. New Deal liberals committed to judicial restraint needed a way to justify exercising judicial review to protect individual rights. They turned to history to do so. Movement conservatives, who sought to break from liberal precedents, then flipped the political valence of originalism; they were so successful that originalism's origins as a liberal justificatory device have largely been forgotten.
Exceptionalism. As I've said before, conservatives assume original intent out of the past and liberals assume original intent going forward. Universalism means that others, in the present or the future, will or should see our ideas and actions as we see them. Our children will see us as we see ourselves.

We all become history, and historicized.  Americans prefer to live for the moment, and then generalize about it.

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