Is Originalism A Fandom?

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Stetson Law Review


During confirmation hearings for the U.S. Supreme Court in March 2022, Justice Kentanji Brown Jackson briefly remarked upon originalism as a method of constitutional interpretation. What significance should we attribute to a successful nominee of a Democratic president speaking in relatively favorable terms about a judicial philosophy espoused by all three nominees of the Republican predecessor? For some, the moment indicated the victory of originalism. For others, it demonstrated that originalism has expanded so broadly as to be essentially meaningless. Following an unprecedented leak of a full draft opinion in early May, in late June 2022 the Court issued its decision in Dobbs v. Jackson Women's Health, overruling Roe v. Wade and Planned Parenthood v. Casey and thereby abrogating a constitutional right to abortion regardless of the stage of pregnancy. For some, the majority opinion by Justice Alito is rightly characterized as originalist due to its significant reliance on a discussion of U.S. legal history in justifying the doctrinal reversal. For others, the opinion does not reflect originalist methodology in its analysis. Who is right? How would we go about determining the answer? Is it possible in each instance that both perspectives are right?

These two examples are the most recent highly visible controversies over the definition and nature of originalism. In the scholarly literature we can find many more, advancing or critiquing originalism both in theory and in practice. Why would some scholars desiring to defend progressive and inclusive case law seek to recharacterize evolving contemporary norms as a product of historically grounded originalism? How should we conceive of originalism when self-described originalist scholars maintain that their version of theoretical originalism should be dissociated from the methods or analyses put forward in practice by self-identified originalist judges? After decades of numerous iterations of such dilemmas, the traditional parameters of constitutional theory have inspired much debate and attained little consensus about originalism. From an interdisciplinary perspective provided by the field of fan studies, however, these dynamics quickly come into focus. For at least the past half-century, originalism has played a prominent role in U.S. constitutional theory. For a quite similar length of time, Star Wars has been a popular culture phenomenon in the United States. Their respective interpretive communities confront the same challenges. Both involve highly contestable issues of interpretation of an iconic text, including the scope and solidity of its initial meanings and the evolution of the text itself over time. Both wrestle with the influence of distorted historical narratives, nostalgia, and forces resisting more inclusion and pluralism. Both include interpreters seeking to discern a singular objectively provable meaning when the text at issue not only contains numerous generalities and indeterminacies, but also carries a profound emotional, cultural, and personal significance to its interpreters and the broader community in which their interpretive analysis occurs. Consequently, while it may be more intuitive to associate a global media franchise like Star Wars with analysis of fandom, the features present in originalism have many significant parallels. When viewed through the lens of this comparison, we can ask the question: is originalism a fandom?

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Publication Date

Fall 2023