Kurt Lash (University of Illinois College of Law) has posted Originalism All the Way Down? (Constitutional Commentary, Vol. 30, p. 149, 2014) on SSRN. Here is the abstract:
In their new book, ORIGINALISM AND THE GOOD CONSTITUTION [Ed: Harvard Univ. Press, 2013, see here], John McGinnis and Michael Rappaport attempt to vanquish what they call constructionist originalism with an approach that I call methodist originalism. Unlike constructionist theories, which allow for non-originalist construction of underdetermined texts, methodist originalism proposes filling in the historical gaps with what McGinnis and Rappaport claim were the originally accepted methods of interpretation. This is originalism all the way down.
It’s a creative effort, and one that appropriately rejects some of the more latitudinous originalist theories currently in play. Unfortunately, the same history McGinnis and Rappaport rely upon fatally undermines their effort to associate every constitutional text with its own originally accepted method of interpretation. The Founding was a time of methodological dispute as legal theorists struggled to reconcile the content of common law with the commitments of popular sovereignty and American-style federalism. Although McGinnis and Rappaport have introduced an important consideration in determining the original meaning of constitutional texts, gaps remain in both our understanding of both original textual meaning and original interpretive methodology. The dragon of construction is not yet vanquished.
Posted at 6:55 AM