Originalism and Democratic Decline

Robin Maril

This Article explores the role of originalism within the context of democratic decline. Drawing on two disparate strands of scholarship—constitutional interpretation and anti-authoritarianism—it explores the restorative nostalgic politics that animate both originalism and anti-democratic movements. While authoritarian movements express a desire to return to a mythic and exclusionary past, originalism tethers judges to the intent, values, and practices of the Framers, necessarily invoking deeply flawed periods in U.S. history marked by hierarchy and disenfranchisement. This Article concludes that the widespread adoption of originalism has diminished the ability of the United States to stare down anti-democratic threats because it has eroded two key bulwarks against authoritarianism and fascism—individual rights and an independent judiciary.

The erosion of these essential democratic institutions comes at a time when the United States is classified as a “flawed democracy,” and the world-wide democracy index has fallen precipitously. Originalism was identified by the New Right in the 1980s as a way to institutionalize the “traditional family” policies of the Reagan Revolution and reverse the civil rights advances of the Warren Court and its progeny, most notably Roe v. Wade. Although its proponents continue to tout originalism as a way to rein in judicial elites and ensure fidelity to the Constitution, it has unwittingly primed the federal judicial system for a future anti-democratic movement and consolidation of power. Rather than help forestall democratic decline, this Article explains why originalism is uniquely positioned to facilitate it.

Justice Scalia famously described originalism as “the lesser evil,” but it is clearly time to revisit that calculus. Part I discusses the rise of the New Right and the genesis of the originalist political movement during the Reagan administration. Part II explains that originalist interpretation is driven by a strong sense of restorative nostalgia that can undermine political and civil rights and the independence of the judiciary—two essential democratic safeguards. Part III explains how originalism furthers a form of exclusionary populism that can serve as the precursor to authoritarianism. A brief conclusion notes that originalism has resulted in a type of populist legalism that leaves the courts both vulnerable to, and potentially complicit in, a slide toward authoritarianism.