Thursday, May 5, 2011

Solum on The Evolution of Contemporary Originalist Theory

What is Originalism? The Evolution of Contemporary Originalist Theory has just been posted by Lawrence B. Solum, University of Illinois College of Law.  Here's the abstract:
Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists”, are confused – with each side of the debate making erroneous assumptions about the content of their opponent’s theories.

The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice.

The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one. On one interpretation, living constitutionalism and originalism are (mostly) compatible: the constitution lives inside the “construction zone,” the boundaries of which are marked by the original meaning of the text. On another interpretation, living constitutionalism is incompatible with originalism: living constitutional doctrine and practices can override even original meaning of the text, even when that meaning is clear.

1 comment:

dah said...

A strain of originalism has always been presnet in constitutional thought. The Chief Justice's opinion in Dred Scot was originalist, and another Chief Justice rejected an originalist approach in the Minnesota Mortgage Moritorium Case in 1934. But the increase in originalist commentary (i.e., law review articles and books) came in the wake of Roe v. Wade. It is just striking.

Someday an enterprising scholar will prepare a graph of the number of articles and books on originalism that were published from, say, 1950 thorough 2010. There will be a flat line, indicating a few publications, until a few years after Roe when the line skyrockets northward. There is a direct correlation, obvious on a timeline, between the current judicial and academic infatuation with originalism,, in its many changing forms, and Roe.