On the Origins of Originalism

In this Article, Professor Greene compares the broad appeal of originalism in the United States with its relative lack of popularity in other constitutional democracies. He offers several hypotheses as to the influences that cause the American culture to accept originalism much more readily than other nations, ultimately concluding that the debate over originalism in the United States should be approached in ethical terms.

Constitutional interpretation is an important facet of the judicial system in many countries throughout the world. As is the case in the United States, judicial restraint and strict adherence to constitutional principles are encouraged in many judicial systems internationally. A number of factors make the judicial systems in Canada and Australia particularly comparable to the American system. Nevertheless, the historicist-style originalism that is popular in the United States lacks support in both of these countries. Greene offers six hypotheses for this phenomenon: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. Greene concludes that these hypotheses, in turn, suggest that the originalist argument in the United States is a form of ethical argument, and the debate over originalism should be framed as such.