| Book Review | Law and History Review, 25.2

Book Review

Johnathan O'Neill, Originalism in American Law and Politics: A Constitutional History, Baltimore: Johns Hopkins University Press, 2005. Pp. xii + 284. $55.00 (ISBN 0-8018-8111-0).

Originalism in American Constitutional Law offers a thoughtful historical treatment of originalism within the United States. This work has four main branches. First, Johnathan O'Neill finds historical antecedents for modern versions of originalism in what he describes as "textual originalism." Second, he describes the eclipse of this approach by legal realism during the New Deal era. Third, the book traces the restoration in the 1960s of originalism in distinctly modern form, along with its subsequent criticism, elaboration, and persistence through the turn of the century. Fourth, O'Neill defends modern incarnations of originalism, like their precursor, as rooted in deeply grounded premises that the U.S. Constitution has been consent-based fundamental law capable of limiting official power.

According to O'Neill, there was broad consensus from the founding period through the early twentieth century that constitutional interpretation required ascertaining and applying the Constitution's original intent. In his view, it was axiomatic or tacit that "interpretation was understood as effectuating the preexisting sovereign will of those who legitimated the words and structure of the Constitution that the framers wrote, as revealed by text, historical evidence, reason, and common sense" (18). The book cites passages from decisions by the Marshall and Taney Courts, along with selected treatises, in support of this view.

But originalism suffered from its associations with formalist adjudication and substantive due process. The rise of modern forms of judicial power, according to O'Neill, was rooted in a revolt against formalism and the marginalization of traditional forms of textual originalism. During the New Deal era, legal realists instead developed pragmatic instrumentalist approaches to the law, tied to a notion of the Constitution as a malleable, living document.

O'Neill argues that the radical potential inherent in modern jurisprudence was initially obscured by its link to the judicial "self-restraint" and "legal process" approach. He explains how Progressive-era thinkers emphasized the importance of judicial self-restraint, including through elaboration of a procedural model of adjudication. But this goal, in O'Neill's view, was in tension with the modern judicial practice of adapting and constructing the meaning of a supposed "living Constitution." According to O'Neill, this tension became evident in the Supreme Court's opinion in Brown v. Board of Education (1954) and in efforts by commentators to justify that decision.

An increasing awareness of the difficulty of defending modern judicial power set the stage for a return to originalism in the late 1960s. Among other things, O'Neill emphasizes that the Warren Court invited historical analysis by repudiating several established constitutional doctrines and by plunging into social reform primarily on the basis of readings of the Reconstruction-era Amendments that did not accord with understandings of their original meanings. A persistent complaint was that judicial opinions contrary to original intent threatened the rule of law. O'Neill also links the revival of originalism to the fragmentation in the late-1960s of the New Deal coalition. More specifically, political conservatives relied on originalism to criticize the Warren Court's "liberal" decisions.

But originalism, even in its increasingly theorized forms, has not achieved its initial preeminence. Nor has it provided simple solutions to the problems of modern adjudication. Important sections of O'Neill's narrative highlight Raoul Berger's scholarly contributions, review efforts by Republican presidents and their administrations to advance originalism, reflect on the significance of controversies involving Robert Bork's nomination as a Supreme Court justice, review more recent scholarly works, and explore the historical and contemporary political significance of originalism.

O'Neill's conclusion on the last of these issues is balanced. He notes that justices, including political conservatives, have relied on a variety of interpretive approaches in addition to originalism; and he acknowledges arguments that originalism has not necessarily constrained practitioners any more than the legal liberalism it has contested. His central descriptive conclusion seems on target: "American constitutional jurisprudence is best described empirically as an amalgam of plural modalities of argument that depend on competing conceptions of legal authority, which are never able wholly to displace one another" (212).

At the same time, O'Neill provides at least two reasons for endorsing originalism. First, he suggests that it resonates better than the idea of a living Constitution with notions of consent-based, legally limited government. Second, he suggests that originalism "partakes of the conservatism inherent in the constitutionalist attempt to achieve order and stability by creating some distance between written law and political aspirations based on more direct appeals to justice, nature, rights, or class" (215). Originalism in American Constitutional Law moves forward consideration of these matters, even as it recognizes that they remain highly contested.

Wayne D. Moore

Virginia Polytechnic Institute and State University

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