Popular Originalism

<p>Scholars are obsessed with the Roberts Court’s recent turn to history and tradition. But another source of authority has also emerged as an important feature of the Roberts Court’s approach to constitutional cases. In previous work, I have referred to this source of authority as popular meaning. While original meaning identifies the best reading of the Constitution’s text at the time of its ratification, popular meaning draws on sources of authority outside the courts to capture the constitutional views of the American people today. In this Article, I demonstrate how interpreters might draw on the Constitution’s popular meaning to help build an interpretive approach that bridges the divide between originalism and popular constitutionalism. While these theories may be in some tension—with originalism seeking to preserve the past and popular constitutionalism trying to realize popular self-governance today—I argue that it’s possible to be both an originalist and a popular constitutionalist. Building on new originalist scholarship (including Jack Balkin’s famous account of living originalism), one might agree to be bound by the Constitution’s original meaning, while still using popular meaning to craft a rule of construction when the Constitution’s legal meaning runs out. I refer to this approach as <i>popular originalism</i>. In response to some of popular constitutionalism’s most vocal critics, popular originalism represents one way to make popular constitutionalism work inside the courts.</p>