Progressive Originalism and the New Canon Wars

Abstract

Abstract This essay responds to Geoffrey Kirsch’s review essay “What’s Past is Prologue: Democracy in the Age of Originalism” by evaluating how the three texts Kirsch reviews—Kermit Roosevelt, III’s The Nation That Never Was: Reconstructing America’s Story (2022), Cass R. Sunstein’s How to Interpret the Constitution (2023), and D. Berton Emerson and Gregory Laski’s edited collection Democracies in America: Keywords for the Nineteenth Century and Today (2023)—engage with progressive originalism. Drawing inspiration from civil rights activists including Frederick Douglass, progressive originalists seek to recast an ostensibly conservative method of constitutional interpretation grounded in what the “founding fathers” or a historical public thought or intended. Roosevelt’s and Sunstein’s books reveal the potential and limits of both progressive originalism and insular disciplinary conversations about constitutional interpretation. Contrastingly, the multidisciplinary Democracies in America has a more expansive conception of whose voices should matter when interpreting the Constitution through a progressive originalist lens. A comparative analysis of the three books also demonstrates the value of literature and literary historians in an age characterized by the ascendancy of historical approaches to constitutional interpretation and a revival of the “canon wars.”