Why Edmund Burke Would Oppose Originalism

“Burke’s place in the American conservative pantheon is peculiar if not paradoxical.”

Shortly after the French Revolution began, and not far removed from the adoption of the American constitution, there appeared a pamphlet by the title Reflections on the Revolution in France. Edmund Burke’s publication inaugurated the pamphlet wars in Britain. It also established his reputation as the father of “modern conservatism”—though he is certainly not the first conservative, given that he builds from a litany of other sources and writers who predate him. His work was a sobering indictment of the French Revolution, its nihilism, and its a-historical spirit; the French cut themselves off from their ancient lineage and roots and attempted to socially engineer a utopia from the feeble dictates of natural reason which was destined to fail. Burke’s criticism of the French Revolution is, primarily, a condemnation of the human ability to construct the perfect constitution and perfect society from reason alone and the idea that humans can be detached from their historicity.

Burke’s place in the American conservative pantheon is peculiar if not paradoxical. On the one hand he is the embodiment of political caution, moderation, and defender of ancient liberties. On the other hand, he is wholly incompatible with prevailing conservative sentiments toward the American Constitution and the juridico-political ideology of “originalism.” Burke’s criticism of the French Revolution and the Declaration of the Rights of Man is a criticism of the celestial constitution theory, which the originalist school is guilty of embodying.

As it relates to Burke’s emphasis on antiquarianism and inheritance, it is not the case that Burke sees an unbroken and unchanged transmission of ancient rights down through time as a buttress against the vicissitudes of history. On the contrary—and building from John Fortescue and John Selden—it is precisely the accidents of history that have led to the growth and continuation of the English constitution and the common law that is indicative of its greatness. In other words, it is the living constitution with its ability to adapt—and grow—with the changes of history and society without abandoning its roots which makes the English constitution good. English customs and laws are good precisely because they’re adaptable to new circumstances, which permit both inheritance and growth. Its roots are in history, but its blossoming bud extends into the groundless future.