by Frank B. Cross. Stanford: Stanford University Press, 2013. 240pp. Cloth $45.00. ISBN: 978-0-8047-8382-8.Reviewed by Charles C. Turner, Department of Political Science, California State University, Chico. Email: ccturner [at] csuchico.edu.
pp.236-239
The Failed Promise of Originalism offers an exploration of the originalist approach to interpreting the U.S. Constitution. Frank B. Cross addresses the question of whether originalism is an authentic and sincere interpretive guide for Supreme Court justices or just a strategic tool that one can manipulate to serve one’s ends. Unlike many of its academic predecessors, however, Cross’s examination focuses on practice rather than theory in addressing the value of the approach. In the end, he finds the “failed promise” to be that originalism is neither a consistent nor constraining guide to constitutional decision making. Instead, it offers an indeterminate historical record that has led jurists to contrasting conclusions and likely provided a cloak for ideologically based decisions.
To be sure, Cross spends a significant portion of the text laying out the theory in a careful manner that attempts to clearly delineate what contemporary scholars do and do not mean by originalism. The first two chapters address the development of originalism as an interpretive method and distinguish between the original intent or original expected applications advocated by Edwin Meese and others beginning in the 1970s and the now more broadly accepted approach of searching for an original public meaning of the words in the Constitution, sometimes called the “new originalism.”
After thoroughly investigating the evolution of different forms of originalism, and concluding that they may not produce markedly different outcomes in practice, Cross moves on to examine the practical problem of discovering original meanings. In Chapter Three, Cross sorts through the various documents that historians, judges, and legal scholars have used to discern original meanings. After a thorough examination of available evidence, he concludes that a few key sources – The Federalist, Elliot’s Debates, the Convention notes compiled by Max Farrand, dictionaries from the founding era, and the Declaration of Independence – have been the most frequently and consistently employed texts in deciphering the original meaning of the Constitution. While it clear that Cross is not an adherent of originalism, he takes up the question of originalism’s value in earnest and presents the relevant arguments and history in an even-handed manner.
While valuable and thorough examinations of the meaning and sources of originalism, these early chapters do not offer new insights as much as they lay the groundwork for the latter two-thirds of the book, which first examines the historical use of originalism by the Supreme Court and then provides some empirical tests of the theory’s claims. Chapters Four and Five [*237] trace the usage of originalist arguments by justices, using the Warren Court as a point of separation, as it was this Court’s supposed lack of attention to originalism that led to a conservative call for greater use of the approach afterward. Cross finds that, contrary to the popular perception advanced by Robert Bork and others, justices of the Warren Court actually referenced originalist sources more than any prior Court had. While the pre-twentieth century Courts relied less on originalism – because they were closer to the period itself, some of the originalist sources had not yet been made public, and no broad theory of originalism had been developed – even these Courts made occasional use of founding era texts and indicated that the original meaning of the Constitution was a topic worthy of consideration. Originalist sources fell into disuse during the progressive and New Deal eras, but then began a revival during the Warren and Burger Courts. Cross argues that it was the Warren Court’s non-originalist marquee cases – such as Brown, Griswold, and Miranda – that led to its reputation as anti-originalist. An empirical look at the overall use of originalist sources, however, reveals a growing reliance over the course of that era.
The most recent Courts, through the appointment of self-proclaimed originalists such as Rehnquist, Scalia, and Thomas, have brought the theory to the forefront, though they have not employed all originalist sources with greater frequency in their opinions. Indeed, it has mainly been greater use of The Federalist during the Rehnquist era that led to that Court’s originalist reputation.
The final three chapters take on the empirical use of originalism in a more systematic way. Chapter Seven counts the usage of originalist sources throughout the Court’s entire history, confirming the claims described above. Acknowledging that there are some areas of law where originalism may not be relevant, Cross also examines a subset of cases where at least one opinion cites an originalist source. These observations lead him to conclude that there is not huge variation between justices in how often they cite these sources, and that even the most committed originalists will fail to take up this line of argument in a significant percentage of even those cases where their brethren find such sources useful. Based on these data, Cross concludes that “none of the justices, even those openly devoted to originalist interpretation of the Constitution, truly appears to be a fully faithful devotee of the method. Nor do any justices plainly reject the use of originalism” (p.151).
Cross pits ideology against originalism in the book’s final two chapters. Chapter Eight examines the scholarship of ideology and judicial decision making broadly and Chapter Nine looks at the empirical evidence. He posits that if originalism is truly constraining a justice’s behavior – driving him or her to decide cases in a manner distinct from ideological predilections – one should be able to see evidence of this effect. This leads Cross to compare individual justices’ decisions, those with and without originalist arguments, along an ideological dimension. He examines opinions since 1952 and finds that, of twenty justices, only six had their ideology tempered by the use of originalist sources. Moreover, [*238] originalism was as likely to make liberal justices more conservative (Black, Brennan, Marshall) as it was to make conservative justices more liberal (Kennedy, Rehnquist, Thomas), though the size of the effect appears greater for the former group. Cross notes that the influence of original sources seems to be present or not independent of a justice’s expressed adherence to originalism as a method. He also finds that, overall, the use of original sources is not associated with more conservative than liberal votes. Ultimately, there may be some justices who feel constrained, and in a conservative direction, by their sincere use of originalist history. But if this is so, it is not a conclusion borne out by the empirical observations presented here.
The book collects more systematic data about the practical use of originalism than previous efforts have, but at the end of the day the reader must still observe originalism indirectly. Not even this thorough approach can reach inside the judicial mind. As Cross readily admits, the measurement of adherence to originalism by counting opinions that reference select original sources is an imperfect approach. This method may be a better measure of the Court’s overall acknowledgement of originalism than of any specific justice’s internal motivations.
This inherent limitation should not overshadow the genuine value of the research. Though the statistical examination is rudimentary – relying mostly on simple counts of usage and percentages – this approach makes the results that much easier to contemplate for a wide audience. The counts of references to originalist sources in Chapter Seven are a useful visual for how originalism has been treated over time. And the ideological direction of the resulting decisions laid out in Chapter Nine provides a clear – and unexpected – snapshot of the practical result of this application. That being said, there are places where the empirical work leaves the reader wanting more. Chapter Nine’s key finding regarding justices’ ideology when either employing or not employing originalist sources, for example, offers only percentages to compare. With no sense of the sample size and no statistical comparison of these differences, the reader can only eyeball the data and attempt to draw his or her own conclusions.
The book’s greatest value is likely to scholars of constitutional interpretation and for graduate seminars focusing on these theories. And though this review has necessarily oversimplified the book’s arguments, they are presented in sufficient detail to be worthy of either of these audiences. In fact, a fair criticism of the book may be that the painstaking detail in which the author explores originalism may unnecessarily limit readership. Along a similar line, the thoroughness of the literature review throughout the text tends to obscure the author’s very thought-provoking original arguments.
Cross’s implied conclusion – that originalism’s limited value in practice trumps its alleged strengths as a theory – will likely leave committed adherents of originalism unconvinced. This does not, however, diminish its value to the student of legal reasoning. To the contrary, adding empirical arguments to what is often a theoretical debate issues a new challenge to originalists. Cross even goes as far as to suggest that his [*239] findings “shift the burden of proof” in the ongoing debate and that “those who argue for originalism should be called on to demonstrate its effect in practice, not just in theory” (p.191). In the interest of further scholarly debate, one hopes that originalist academics and practitioners alike will take up this well-articulated and respectful challenge.
Copyright 2013 by the Author, Charles C. Turner
