Originalism has been a controversial presence in American constitutional jurisprudence since the 1980s. Reacting against the liberal ‘living constitution’ jurisprudence of the Warren and Burger Courts, conservative jurists urged fidelity to the original principles which had animated the Constitution in the late eighteenth century. However, the quest for original meaning is not as straightforward as conservatives have assumed. Not only is original intent tantalisingly elusive, it raises major issues of historical interpretation. How far do the assumed historical underpinnings of originalism mesh with the findings of academic historians? To what extent has the conservative invocation of the Founding Fathers obscured a lost American Enlightenment? Nor is ‘tradition’ in American constitutional law an unproblematic matter. How far does a desire to restore the original meaning of the Constitution ignore the role of ‘stare decisis’ (precedent) in America’s common law heritage? Colin Kidd explores the tensions between originalist jurisprudence and historical scholarship since the 1980s, and examines the various usable pasts in operation in American constitutional theory. Originalism, it transpires, has many mansions. Moreover, the various schemes of historical interpretation in American constitutional jurisprudence do not map easily onto a simple liberal-conservative divide. The lecture will also interrogate more general issues about the relationship between academic and ‘applied’ history.
Colin Kidd FBA is Wardlaw Professor of Modern History at the University of St Andrews and a Fellow of All Souls College, Oxford. He is the author of Subverting Scotland’s Past (1993), British Identities before Nationalism (1999), The Forging of Races (2006), and Union and Unionisms (2008), all published by Cambridge University Press.
After the lecture this year’s RHS prize winners and fellowship recipients will be announced at the annual Prothero reception, 7-8pm, South Cloisters, Wilkins Building, UCL