The Volokh Conspiracy

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Originalism and state constitutions


"Originalism: The Primary Canon of State Constitutional Interpretation" is a very interesting new article by Jeremy M. Christiansen; here's the introduction, which summarizes the thesis well:

When scholars talk about originalism—and they do a lot of talking—they are almost always really talking about federal originalism. In other words, they are speaking only about whether courts ought to interpret provisions of the U.S. Constitution according to those provisions' original meaning. And so, when scholars make assertions about where "originalism" came from, or whether it is partisan, or whether originalism is a good or a bad idea, they are almost always talking about originalism from the paradigm of Federal constitutional law, and not state constitutional law.

Given the often parochial nature of state constitutional law and its legal subordination to federal constitutional law, it is understandable that discussions about originalism would, like most constitutional law topics, tend to be federal-centric. But this is nevertheless problematic because originalism is not just a theory of U.S. Constitutional interpretation; it is more transcendent than that. It is supposed to be a theory of constitutional interpretation (and, really, as a subset of textualism, a theory of interpreting legal texts generally). Thus, if we are to assess originalism's usefulness, we ought to be looking at the bigger picture, a picture that includes state constitutional interpretation.

This article bridges a gap in the originalism literature by showing the ubiquitous use of originalism in state constitutional interpretation. In short, the super majority of state supreme courts have expressly identified originalism as the primary canon of state constitutional interpretation. This is not an assertion that these courts are always faithful to the original meaning in a particular case; such an inquiry is beyond the scope of this article. Instead, the point is that originalism as a theory of interpretation has been consistently invoked in state courts for far longer and with much greater consistency than in federal courts. Any assessment of originalism must take account of this body of law.

I'm not an expert on state constitutional law, but from what I've seen of state cases, the article's thesis seems both likely correct and important.