Ian C. Bartrum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Two Dogmas of Originalism (Washington University Jurisprudence Review, vol. 7, iss. 2, forthcoming) on SSRN. Here is the abstract:
In the early 1950s, Willard Quine mounted an influential attack on logical positivism and the effort to perspicuously distinguish “science” from “metaphysics.” Quine argued that positivism of this sort depends on two “ill-founded” dogmas: (1) Kant’s distinction between “analytic” and “synthetic” truths, and (2) the notion that meaningful linguistic statements must bear a logical relationship to sensory experience. Both dogmas, Quine argued, wrongly assume that we can successfully translate one linguistic term into another without semantic remainder. In short, there is more to language — and life — then logic.
In this piece, I argue that two similar — and equally ill-founded — dogmas underlie modern originalist interpretive theory. The New Originalists, particularly Larry Solum, have identified two essential commitments of modern originalism: (1) the “fixation thesis”, which asserts that constitutional text has a “semantic meaning”, which can be fixed empirically at the time of its ratification; and (2) the “constraint principle”, which asserts that this “semantic meaning” must constrain judicial efforts to construct the legal rules that will apply to modern controversies. Regarding (1), I argue that historical “fixation” (even if possible) is not in fact a significant part of the shared interpretive practice that gives the Constitution meaning. As to (2), I contend that reductionist efforts to legitimize constitutional interpretation in terms of a single foundational referent — history — tend to undermine the complexity and hard-won stability of our longstanding democratic traditions.
Posted at 6:47 AM