Originalism and the Chronological Separation of Powers

Inspired by the 2024 Childress Lecture, this essay considers originalism in two distinct guises: first, as a method of constitutional interpretation and then, as a politically-coded signal used to ensure predictability of judicial behavior. Regarding interpretation, the essay critiques originalism and its claim as a determinative source of constitutional understanding as a violation of the oft-overlooked chronological separation of powers embedded in the Constitution. Though originalism is often styled as a way of checking the power of judges, it threatens to impose a tyranny of the past that runs counter to a constitutional structure built upon the diffusion of power. However, in the twenty-first century, originalism has become more than an interpretive tool.

With the elevated stakes of modern judicial appointments, originalism has taken on a new form, rooted in political resistance to particular cases, such as Brown and Roe, as a signal that judges will arrive at predictable constitutional conclusions. The essay argues that both originalism the interpretive method and originalism the political signaling tool distort modern constitutional interpretation.