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How original is originalism?

Historism went out of fashion in Germany in the early 20th century. Given the longevity of Supreme Court appointments, it is safe to assume that originalism in American legal thought will not go away anytime soon.

Once upon a time there was a famous German law professor who did not like lawmakers, particularly when they were democratically elected. He thought that legislators were incompetent amateurs, and that lawmaking should be left to educated experts like him. No surprise that his employer, the King of Prussia, wholeheartedly agreed with the professor who, as a member of both the academy and aristocracy, had a special place in the royal heart. It was good to be the king in 19th century Prussia, and a rigid code of law would have taken all the fun out of it. So, the king’s favorite professor, Friedrich Carl von Savigny, came up with a brilliant idea and a snappy name for it too: historism. Why create from scratch big books full of laws that would at best be superficial, egalitarian and disturbingly progressive snapshots of the zeitgeist? Historism or the “Historical School of Law” held that judges and jurists should take a deep dive into the volksgeist, the “common consciousness of the people,” and form their legal opinion based on the tradition, heritage and regional customs of the Germanic lands and tribes.

Historism — Prussia’s version of originalism — was the brainchild of Friedrich Carl von Savigny.
Historism — Prussia’s version of originalism — was the brainchild of Friedrich Carl von Savigny.
Sound familiar? A deep dive into what he considers the American volksgeist leads Supreme Court Justice Samuel Alito to claim, in his leaked draft to overturn Roe v. Wade, that “a right to abortion is not deeply rooted in the Nation’s history and traditions.” Alito plays to America’s religious right the same way Savigny played to the Prussian monarchy. Alito’s originalism is historism with stars and stripes – or stars and bars, for that matter, given his obsession with states’ rights and aversion against federal legislation. And he is just as lucky as Savigny was that he doesn’t have to deal with codified law and can simply blame previous jurists and court decisions to be “egregiously wrong.” Is this academic arrogance or self-righteousness? If graduates from Ivy League law schools sound like they received their degree from the Vatican, it may be time to take a serious look at the curriculum. There are, however, legitimate similarities between the Vatican and the U.S. Supreme Court: Both institutions still offer lifetime appointments to their office holders that tend to go way beyond their best-by dates.

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Henning Schroeder
Henning Schroeder
So, what happened to Savigny and his historical school of jurists? Despite resistance from Savigny and his followers, detailed national codes of law were eventually developed in all areas of private and public life in Germany and passed by elected lawmakers. Historism went out of fashion in Germany in the early 20th century. Given the longevity of Supreme Court appointments, it is safe to assume that originalism in American legal thought will not go away anytime soon. Interestingly, Savigny’s pro-monarchy stance didn’t blemish his reputation as a legal scholar. Today streets, squares and a journal for legal history bear his name. It’s hard to tell if that will happen to Alito. But maybe his co-signer and fellow Yale Law School alumnus will get a brewery named after him.

Henning Schroeder is a professor at the University of Minnesota and currently teaches in the Department of German, Nordic, Slavic & Dutch. His email address is schro601@umn.edu and his Twitter handle is @HenningSchroed1.