William & Mary Bill of Rights Journal
Abstract
In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.
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My central claim is that cafeteria originalism is not a pathology or a falling away from a pure or correct version of constitutional interpretation. Quite the contrary, the persistence of cafeteria originalism in American constitutional culture reveals the deep rhetorical structure of American constitutional law. That is why non-originalists make originalist arguments all the time without thereby being converted to the originalist creed. Conversely, that is why conservative originalists who argue that originalism is the only legitimate approach have always had to leaven their theories with qualifications, exceptions, and epicycles, and why originalist judges routinely ignore originalist arguments in many cases. It is also why conservative originalists appointed to the Supreme Court will inevitably disappoint their fellow originalists in the academy who insist on theoretical purity and logical consistency. The disappointment, however, stems from an unrealistic vision of what originalist argument really is and how it works in American legal culture.
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Whether our constitutional interpretations are right or wrong in any particular case, we are all cafeteria originalists, and we always have been. The most plausible versions of interpretive theory—including, as I shall explain, the most plausible versions of originalism—make their peace with cafeteria originalism; indeed, they enjoy the smorgasbord.
This abstract has been taken from the author's introduction.
