Aaron Houck (Queens University of Charlotte, Political Science) and Claire Teague (independent) have posted Pluralistic Originalism (34 pages) on SSRN. Here is the abstract:
Originalism is a method of constitutional interpretation judges use to resolve textual indeterminacy. The dominant strain of originalism argues that proper constitutional meaning comprises the original public meaning of constitutional provisions at the time of their adoption — and that this result is required by a robust theory of democracy. Strong proponents of this view argue that interpretations of constitutional texts that are not faithful to their original meaning are illegitimate. But most of the Constitution’s textual indeterminacies did not emerge over time. Rather, they have existed since the text was drafted. Throughout constitutional history, individuals and groups have publicly argued about the meaning of proposed constitutional provisions — the Constitution itself, the Bill of Rights, and every subsequent successful amendment (along with numerous failed amendments). And additional interpretations could have plausibly been imagined privately by people shut out of public debate for various voluntary or involuntary reasons. The originalist theory of democracy offers no principled rationale or method for privileging one such original public meaning over any other. Thus originalism itself has a problem with indeterminacy. In cases requiring the interpretation of indeterminate constitutional provisions, originalism cannot resolve these textual indeterminacies. This is the problem of original indeterminacy. Recognition of original indeterminacy — what we call “pluralistic originalism” — places contemporary originalists in precisely the same position as the text’s original adopters: a position that acknowledges a range of possible textual interpretations — sometimes a range so wide that it includes inconsistent, even contradictory, interpretations. To resolve cases that turn on such interpretations, judges must look beyond originalism to other interpretative methods and canons of constitutional construction.
Or, judges could acknowledge that faced with irresolvable indeterminacy they have no authority to override the constitutional judgments of the political branches.
Posted at 6:13 AM