Gerard Magliocca's post on originalism, noted here, has provoked some outstanding responses:
At Legal Theory Blog, Lawrence B. Solum delivers a sharp and sophisticated critique: A Simple Test for Originalism?
And Jack Balkin responds to Professor Magliocca at Balkinization: Why Sigh . . . . About Originalism?, leading to this exchange – Magliocca; Balkin; Magliocca.
Balkin, in his second post, endorses the following definition of originalism by Larry Solum:
1. Something (whether we call it original meaning, original intentions, or original understandings) is fixed at the time of adoption or amendment of a constitution;
2. What is fixed cannot be altered except through Article V amendment; and
3. What is fixed matters to correct constitutional interpretation.
Balkin adds:
This definition comfortably includes all of the various schools of originalism existing today. Moreover, it excludes two of the most prominent nonoriginalists, Ronald Dworkin and David Strauss. Dworkin's interpretive theory, which balances fit and justification, does not accept conditions 2 or 3. It also excludes Strauss's common law constitutionalism, which identifies the Constitution not with its text but with what results from the application of common law methods. The text is merely a focal point for political coordination. It is therefore at least theoretically possible that parts of the text could be disregarded over time (thus violating condition 2); moreover, Strauss believes that certain constitutional amendments are practically irrelevant to interpretation (thus violating condition 3).
Posted at 9:00 AM