Anna Conley, University of Montana Alexander Blewett III School of Law, has posted The Inevitability of Adaptability: Comparative Contributions to Understanding Originalism, which is forthcoming in the Emory International Law Review:
What can comparative law teach us about originalism as a constitutional interpretation method? After synthesizing existing comparative analyses, this article seeks to redefine comparative law’s role in understanding originalism. When defining originalism strictly to require adherence to fixed original meaning, originalism is not used by courts anywhere in the world. Instead, courts use history purposively to understand the intent behind constitutional text as one of many methods of interpretation. Comparative works suggest historical constitutional interpretation has a complex relationship with rights, politics and culture.
Comparative law can provide not only descriptive understandings of originalism but also interrogate its mandate that present-day judges adhere to fixed historical definitions of constitutional provisions. This article challenges originalism’s normative mandates by proposing principles about the movement of law between and within legal systems gleaned from comparative law. Two proposed principles are: (1) the “interpretive valve principle” that legal systems need mechanisms to adapt to societal changes, and that legal systems will generally work around artificial barriers to interpretive valves; and (2) the “legal transplant principle” that legal transplants always change from their origin system to the receiving system. Islamic law’s development throughout the Islamic diaspora, Europe’s reception of Roman law, and post-colonial common law systems’ integration of English law highlight these fundamental tenets.
This article applies these principles to equitable originalism, a strict originalist philosophy fixing the meaning of “equity” in Article III to English chancery courts’ equitable powers in the 1780s, and limiting federal judges’ equitable powers to that fixed meaning. Equitable originalism is an artificial barrier to equity, which is an interpretive valve in the U.S. legal system. This dispositive freezing of equity is seen in no other former British colony, and stymies development of equity’s inherent corrective function. Equitable originalism will likely face limited success as a sustainable constitutional interpretation method because it is anomalous to the way law moves and develops.
--Dan Ernst
