Popular Originalism? The Tea Party Movement and Constitutional Theory

The U.S. Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the Constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism—constitutional interpretation outside of the courts—to invoke originalism as interpretive method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look to history to determine the fixed “original” meaning of the Constitution, which they hold to be binding on contemporary interpreters, regardless of subsequent historical or political developments. Popular constitutionalists study the way in which constitutional interpretation has been influenced by historical developments and explore the use of constitutional theory to bolster constitutional arguments. This Essay explores the convergence and divergence between originalism and popular constitutionalism and questions whether popular originalism is feasible, given originalists’ fidelity to the original text of the Constitution. This Essay concludes by asking what popular originalism can teach us about constitutional interpretation and democracy. While modern originalism began as a critique of judicial overreaching into the political process, it has evolved into a justification for courts to overturn democratic measures. Paradoxically, then, the popular originalism of the Tea Party may achieve its only success not through the democratic process, but in the federal courts.