Originalism as Popular Constitutionalism: Theoretical Possibilities and Practical Differences

INTRODUCTION The common perception is that originalism and popular constitutionalism are incompatible. For example, historian Saul Cornell has recently argued that "[p]opular constitutionalism was, and remains, closer in spirit to modern ideas of a living constitution, and is therefore ultimately incompatible with all forms of originalism." (1) Supporting this perception is the widely-shared opinion that most advocates for popular constitutionalism are liberal (2) while most originalists are conservative-libertarian. (3) Not only is this the perception, it has a basis in reality. Looking at the names of leading originalists and popular constitutionalists (4) reveals that there is significant overlap between originalism and conservatism-libertarianism, and between popular constitutionalism and liberalism. In this Article, I argue that the common perception that originalism and popular constitutionalism are incompatible is mistaken. Instead, I show that there is no uniquely correct answer to the question of whether and/or how originalism is compatible with popular constitutionalism. Stated more formally, there is no necessary analytical connection or disjunction between the two theories. Instead, because of the theoretical compatibility of the two methods, the conceptual distance between popular constitutionalism and originalism depends on the conception of originalism one is utilizing. (5) With some conceptions, the differences between popular constitutionalism and originalism loom large. With others, the similarities emerge prominently. I argue that whether originalism converges with popular constitutionalism is contingent on the form of originalism in question. I describe five axes upon which originalism pivots toward or away from popular constitutionalism. These five axes are: (1) whether originalism embraces departmentalism in place of judicial interpretative supremacy; (2) whether originalism requires judicial deference to popular interpretative judgments; (3) the extent to which the Constitution's original meaning permits the popular branches to engage in authoritative constitutional interpretation; (4) the extent to which the popular branches authoritatively construct constitutional meaning when the Constitution is underdetermined; and (5) whether originalism includes a place for nonoriginalist precedent. (6) My description of these five axes shows that, in practice, originalism has failed to converge with popular constitutionalism. This raises the question, however, of why originalism is identified with conservative constitutional theory and popular constitutionalism with liberal constitutional theory. I therefore offer three reasons why, despite the theoretical compatibility of originalism and popular constitutionalism, they do not converge in perception and practice. My argument proceeds in three parts. First, I describe popular constitutionalism as a movement in the American legal academy. Second, I show that, despite their theoretical compatibility, in practice, originalism's relationship to popular constitutionalism depends on the conception of originalism one adopts. Third, I suggest three reasons for the liberal-conservative divide between originalism and popular constitutionalism despite their theoretical compatibility. I. THE (RECENT) RISE OF POPULAR CONSTITUTIONALISM Popular constitutionalism is the umbrella label for a family of constitutional theorists. (7) Popular constitutionalism's central commitment is to a greater popular role in the practice of constitutional interpretation. (8) Correspondingly, popular constitutionalists reject the dominant view--judicial interpretative supremacy (9)--which holds that the Supreme Court's interpretations of the Constitution are authoritative. (10) This description fits scholars from Richard Parker (11) through Bruce Ackerman, (12) Mark Tushnet, (13) Larry Kramer, (14) Reva B. Siegel and Robert C. …