Originalism in Crisis: The Movement
towards Indeterminate Originalism
Adviser: Robert P. George
José Joel Alicea
“A remarkable thing happens during the demanding thesis-writing season on Princeton’s campus. A spirit of comaraderie and selflessness suddenly breaks out among seniors, and we all seem to push each other toward the finish line.”
I’m the kind of student who gets very nervous about putting off work until the last minute. So when the last week of January rolled around and I still didn’t have a thesis topic, I panicked. With only about 10 weeks until my thesis was due, my hopes for a smooth thesis experience seemed to lie in shambles.
I had given my thesis topic a great deal of thought during the summer prior to my senior year. My junior papers had focused on issues relating to the constitutional interpretive theory of originalism, a theory that requires the Constitution’s interpreters to adhere to the meaning of the text as understood by its enactors. Those enactors might be the representatives who ratified the Constitution or the general public, depending on one’s theory of originalism, but the important point is that originalism looks to how the document was understood when it was enacted for guidance on current cases. My first junior paper had examined the original meaning of Congress’s excise taxation power in Article I, Section 8, of the Constitution, while the second paper argued that the internal logic of originalism required that Congress be originalist when it interprets the Constitution.
All of this made me eager to delve deeper into the foundations of originalist theory. I spent the fall semester thinking about these issues and outlining my chapters. That semester was particularly stressful because of applications for law school and fellowships on top of a demanding course load, so it wasn’t until January that I was ready to tackle the research for the thesis. I laid out my general argument for my adviser, Professor Robert George, and he quickly pointed out a host of jurisprudential assumptions that I had overlooked. The argument I was presenting assumed a great deal about the nature of law and the project of interpretation. Because jurisprudence is Professor George’s specialty, he was able to show me where I had assumed too much and offer me guidance on research I could do to firm up my argument.
I was filled with the thrill of the academic chase, checking out dozens of books and looking through numerous articles to understand some of the underlying issues involved in my argument. But the more I read, the more confused I became, and I slowly came to the realization that the task of shoring up the foundations of my argument would require many months of research and enough space in my thesis to constitute a separate thesis unto itself! Between the burden of final exams and the realization that my thesis topic was hopelessly ambitious, I hit a low point. It was late January, my thesis topic had been shredded, and nothing I had done up to that point was going to be useful.
At that point, intersession arrived, exams were over, the campus cleared out, and I was left with the time and peace to reflect on my thesis. I tried to break my problem down to identify its cause and find a way to solve it. The cause of my problem was that I was trying to build my theory of originalism from the ground up, starting with the nature of law and interpretation. Such a strategy made sense if I was trying to lay out my theory of originalism for someone who opposed originalism, but the real question I was interested in was what the principal components of a sound originalist theory were. It struck me that this inquiry could simply assume that originalism was the best theory of interpretation and then argue for the most plausible version of the theory, which would allow me to bypass the morass of difficult jurisprudential questions that had engulfed my efforts thus far.
Drawing on my previous research into the internal debates about originalist theory, I dived into the major competing theories of originalism, and I discovered a remarkable thing: There was an emerging trend in originalist scholarship toward new theories of originalism that looked nothing like previous theories. I found myself very much in disagreement with these new approaches to originalism, and almost by accident I discovered my new topic: I would argue for what I saw as the strongest theory of originalism while showing that the newer theories could not plausibly be called originalist and suffered from serious internal flaws. My thesis posits that there is a new scholarly movement, what I call post-originalism, that seeks to claim the mantle of originalism while articulating theories of interpretation and constitutional legitimacy that are very much at odds with what originalism has been and what I believe it should be. No one had described this trend in originalist scholarship yet, making my thesis not only the first to identify the trend but also to state an opinion on it.
After Professor George green-lighted my new topic, I threw myself into the research. Debates about originalism play themselves out mostly in law review articles, though a few books also were required. This was fortunate for me given how late I was starting my research, as the need to travel or find obscure sources would have posed a difficult challenge for me given my time constraints. By the end of February, my research was complete, and I was ready to begin writing. I set a goal for myself to have my first draft completed by the end of spring break, and I worked furiously toward that goal. During the week of spring break, I got up every morning to be at Firestone Library by 8 a.m., when its doors opened, and I didn’t finish working there until dinner. By the end of the week, my draft was done, and I was well on my way toward completing my thesis ahead of the deadline.
I certainly could not have gotten through that strenuous week of writing alone. But a remarkable thing happens during the demanding thesis-writing season on Princeton’s campus. A spirit of comaraderie and selflessness suddenly breaks out among seniors, and we all seem to push each other toward the finish line. I’d arrive every morning to write and see familiar faces in Firestone, and lunch with my friends who were similarly cooped up in the library became a regular event that week. The thesis wasn’t just a way of growing academically and learning how to think of large-scale research projects; it was an opportunity for friends to support each other during a time of real difficulty. That alone was truly rewarding.
But just as I could not have finished the thesis without the help of my friends, I relied a great deal on members of the faculty to help guide my research. I think it’s a real shame that so many seniors depend only on their advisers for research advice when Princeton has some of the leading minds, in so many different fields, who are willing to help. And so while Professor George was central to the development of my thesis, I didn’t hesitate to consult Professors Keith Whittington, Melissa Lane, or Alan Patten on questions I had that were relevant to their specialties. Nor did I only share my draft with my thesis adviser, instead distributing it to a couple of other faculty members with whom I had become good friends and who knew the scholarship on originalism well. These experiences helped to create a genuine sense that I was pursuing a scholarly endeavor and reinforced my friendships with these people, in addition to greatly improving my final draft.
Now, as I reflect back on that time, a few pieces of advice come to mind. First, if possible, I would recommend starting the research for your thesis around October or November. That way, when you find out that your topic is too broad, too narrow, or unoriginal—and it is very likely you will find that it is one of these three—you have enough time to correct the problem and develop a new topic with your adviser. Second, don’t leave the writing phase to the last minute. I know far too many seniors who did that and ended up overstressed and with a thesis that was below the quality they could have achieved. Third, remember that this really is the intellectual culmination of your time at Princeton and that you should put in the time and effort to make it the best product you can. After four years at Princeton, you owe it to yourself to finish with a thesis you can be proud of.
Finally, remember throughout this process: You will finish your thesis. One way or the other, this will get done, and you will graduate. Don’t despair, and don’t get too stressed out, because in the end you will have a final draft to deliver to your department, even if it doesn’t seem as though you will. Having your friends around you throughout the process helps to keep all of this in perspective, and you’ll find that your friendships will be greatly strengthened when it’s all over.
Turn it in, have a great time with your friends afterwards, and enjoy the weeks leading up to graduation. But before you do, get to work!
Originalism in Crisis: The Movement
towards Indeterminate Originalism
José Joel Alicea
Robert P. George
McCormick Professor of Jurisprudence
“To my delight, the thesis Joel produced was a masterpiece of exposition, synthesis, and original insight. It was a thesis that ‘did it all.’ ”
Among the joys of teaching at Princeton is the opportunity to work closely with undergraduate students who are not only brilliant, but also profoundly committed to understanding more critically and appreciating more deeply our nation’s founding principles and guiding ideals. The University’s distinguished tradition of leadership in constitutional studies extends not only to the scholarly work of professors and doctoral students, but also to undergraduate education, including a wide range of courses and independent research by juniors and seniors. In my quarter-century of teaching at Princeton, some of the best writing on the Constitution our University has produced has been in the form of undergraduate senior theses.
In 2009–10, I had the pleasure of advising the thesis work of José Joel Alicea, an exceptionally gifted student who had taken my undergraduate courses in constitutional interpretation and civil liberties, and who also had studied with other members of the faculty who teach law-related subjects. Joel’s record with me and with his other teachers was so strong that I had no doubt about his ability to produce an outstanding piece of constitutional scholarship. In the event, I was surprised, but not by any failure on Joel’s part to meet my very high expectations; rather, I was surprised by the fact that somehow Joel had managed to exceed them!
Joel chose as his topic a fiercely contested issue in constitutional theory: Should constitutional interpretation be guided by the understandings of constitutional provisions held by the framers and ratifiers of those provisions? This view (which, as Joel showed, is really a family of interestingly different views) is usually known as “originalism.” It is typically contrasted with an approach according to which judges and other constitutional interpreters are supposed to honor the Constitution as a “living document” by infusing it with contemporary values or meanings.
Given the vast body of writing on this topic, I warned Joel that half the battle in writing a superb thesis would be finding something “original” (please excuse the pun) to say about it. I further warned him not to try to solve this problem by saying something provocative or outlandish just for the sake of saying something someone else hadn’t said. I told him that I would rather see a rigorous expository and synthetic treatment of the subject than an uncritical and merely provocative one. To my delight, the thesis Joel produced was a masterpiece of exposition, synthesis, and original insight. It was a thesis that “did it all.”
Although sympathetic to the ambitions and concerns that animate originalism, Joel did full justice to the significant criticisms that have been advanced over the past 30 years or so by the most thoughtful critics of originalism. Indeed, Joel showed how these criticisms have, for all intents and purposes, defeated certain forms of originalism (such as those that aim to recover the subjective intentions of drafters of certain provisions of the Constitution), and he carefully integrated the criticisms into his effort to construct a more plausible form of originalism. In doing so, he won for himself a place in the ranks of the most sophisticated contemporary defenders of originalism, such as Princeton’s own Professor Keith Whittington. Indeed, Joel’s engagement with Professor Whittington’s version of originalism, which in certain respects he endorses, relies on, and develops, and in other respects he criticizes, is one of the most exciting features of the thesis.
Joel’s thesis is a dialectical gem. In constructing his own position, he is impeccably fair-minded in treating opposing positions. He is careful at every step to anticipate the best possible objections to the argument he is advancing and to consider and engage the best possible lines of counterargument. In reading the thesis, I would time and again find myself wondering, “yes, but what would Joel say about this or that possible rejoinder to his argument?”; and time and again, I would find in the next paragraph or two Joel presenting and thoughtfully engaging that possible rejoinder.
Of course, lying behind all this is a genuinely Socratic spirit of inquiry and thirst for knowledge that is a tribute both to Joel himself and to the intellectual culture in which he immersed himself at Princeton. Joel would be the first to tell you that when he arrived at Princeton he tended to be a debater more than a truth-seeker. He was adept at winning arguments, but not yet truly in the Socratic mode of loving truth more than victory. What made possible Joel’s extraordinary achievements in his thesis and other intellectual pursuits at Princeton was an existential development, not a mere enhancement of technical analytical skills. He came to understand the splendor of truth and to prize it for its own sake; and he came to see intellectual disputation as the effort of interlocutors who, despite their differences of opinion, are united in the pursuit of a common good and a common goal, namely, the advancement of knowledge and the deepening of understanding.
Joel’s thesis was honored with the Stephen Whelan Prize of the James Madison Program in American Ideals and Institutions for the best thesis in constitutional law and political thought. But for José Joel Alicea, the prize that mattered even more was precisely the deepening of understanding that his exertions in research and writing made possible. As his adviser and his friend, I was proud of him for winning the Whelan Prize; I was even prouder of him for knowing that understanding was a prize even more to be coveted.