At Liberty Law Blog, James R. Rogers: The Ethical Mandate for Originalism. From the core of the argument:
I would argue that there is an ethical mandate for originalism in that adherents of the practice simply aim to read honestly. Originalism follows from common sense in that it proposes that we read legal texts as we read other everyday texts.
[Keith] Whittington appeals in passing to the ethical mandate for originalism at different points in the article [Originalism: A Critical Introduction]. One sees the justification in his adjectives. He writes of originalism as “the faithful interpretation and application of constitutional rules,” its goal being “to faithfully reproduce what the constitutional text requires,” and to “faithfully adhering to constitutional requirements,” etc. Similarly, he writes of originalism having “recently emphasized the value of fidelity to the constitutional text as its driving principle,” having “a primary commitment to constitutional fidelity,” that “the primary virtue now claimed by originalism is one of constitutional fidelity,” etc.
“Faithful” interpretation of a text, however, is not limited to constitutional or statutory interpretation. It’s the goal we have normally when seeking to understand any text; it is the generic goal we have when we read. We seek honestly to understand what the author(s) wrote. This is true whether what we read is a legal text, a math textbook, a Shakespeare sonnet, or a letter from Aunt Jenny. That this is the goal does not entail the project is always easy, that each text has only one clear or determinate meaning, or that people can’t honestly disagree over what a text means. (“What is Aunt Jenny writing about here?”)
This justification for originalism highlights the self-refuting character of non-originalist interpretation: Non-originalist authors write expecting, or at least desiring, that their arguments be read and construed honestly. The “originalist” position, such as it is, is not that legal texts need to be approached as special or distinctive, but that legal texts be approached in pretty much the same way as we read other texts. (This does not entail that we ignore the possibility of specialized language or terms of art, as I argue below.)
I call this an “ethical” mandate for originalism because it aims the reader merely to seek an honest reading of legal texts. This title can mislead, however, if we take it to suggest a virtue unique to judges reading legal texts. That point is the opposite. “Originalism” means that we read legal texts in the same way that we read other texts. …
(Thanks to Mark Pulliam for the pointer).
Posted at 6:17 AM