Saturday, August 19, 2006

"Originalism Redux" Redux (with a reply to Solum)

I notice that several of the law blogs are busy talking about "originalism" again.  Accordingly, I thought it might be timely to remind folks that originalism, the reigning pathology of American constitutional law, is the theory of constitutional interpretation without any theoretical justification.  I am confident that this little problem will not dissuade any of the faithful.

UPDATE:  I confess to being puzzled by Larry Solum's puzzlement, but shall try my best to clarify the question.  In my original post, I wrote (this was not a part Professor Solum quoted):

[T]he fundamental question is why a particular meaning has a justfied claim of authority over us, i.e., why we should comply with that way of construing the meaning rather than some other.  It is very hard to answer this question without some explicit account of what confers normative authority. 

The problem with originalism is that it has no answer to this "fundamental question" because originalists don't grapple with the question of normative authority; indeed, they don't even seem to recognize it as a question!

To be committed to constitutionalism is to be committed to be bound by the meaning of the words in a foundational social and political document of some kind.  Constitutionalism itself requires an account of its normative authority, and it is possible such an account would entail originalism.  I am not aware of a compelling account of this kind offered by originalists, but surely if there is one, someone can articulate it or reference it. 

Barring that approach, the commitment to constitutionalism does not settle the question of how the meaning of the foundational text is to be ascertained.  As I, again, put it in the original posting:

Those who would supplement constitutionalism with originalism need to explain why the original meaning or intentions are authoritative

Why, in other words, is an originalist way of fixing meaning authoritative? Why not the plain meaning?  Why not the morally best sense we can make of the plain meaning or the original intent at a suitable level of abstraction?  Why not the accumulated meanings that have accreted to the text over the course of its institutional history as it is interpreted, debated, amended, and applied?  In fact, as all lawyers know, the courts help themselves to all these approaches at different times.

Originalists often act--this may be the subtext of Larry Solum's puzzlement--that originalism is the default or unavoidable position. But that is nonsense, and that it is not recognized as such is one of the reasons why I describe originalism as the "reigning pathology" of current constitutional scholarship. As I noted in the original posting, I have heard originalists express the view that to interpret a constitution is necessarily to interpret its original meaning.  This is false, and not only as a conceptual matter:  Canadians have a constitution, but originalism is barred as an interpretive method.  Other originalists have claimed that all meaning is a matter of intentions, and therefore, the constitutional text has no meaning apart from what its framers intended.  But this is also false, since intentions themselves are mental states with semantic content, therefore it follows that not all meaning (or semantic content) is a matter of intention.  Originalists could dodge the question of normative authority if it were really true that ascertaining the meaning of a text is necessarily a matter of ascertaining its "original" meaning.  But this, alas, isn't true.

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