Recently, Larry Solum put up a Legal Theory Lexicon entry on Originalism. For those who are not familiar with these entries, they are short discussions of legal theory topics for first year law students. They are quite excellent and are helpful for legal scholars well beyond the first year of law school.
In this post, I would like to react to Larry’s post on Originalism. This reaction is not in any way a criticism of Larry’s post. Instead, I use Larry’s discussion as a jumping off point to discuss some issues that he did not address because of the space limitations and to give my take on them. I have four basic points to make.
1. The Origins of Originalism
Larry starts his discussion or originalism with Raoul Berger’s 1977 book, Government by Judiciary. This is probably the correct place to start for modern originalism. But I think it is well worth emphasizing that originalism existed at the time of the Constitution’s enactment. The two leading interpretive approaches in the early years – John Marshall’s interpretation of the Constitution as the fundamental law of the nation and Thomas Jeffersion’s interpretation of it as a compact among the states – were both versions of originalism. The former was a version of original public meaning; the latter was a version of original intent.
One interesting question is the role of the interpretive rules at the time of the Constitution. Some theorists claim that these are largly irrelevant to the correctness of originalism. Others, like John McGinnis and myself, believe that originalism requires that these original interpretive rules be followed.
2. Positive and Normative Approaches to Originalism
One fundamental distinction in the theory of originalism that Larry discusses is between positive and normative theories of originalism. The positive type of theory asks what is the meaning of Constitution. The positive originalist, of course, says it is the original meaning. The latter type of theory asks what meaning or interpretive approach should be followed. The normative originalists, of course, says we should follow the original meaning.
But one interesting aspect of originalism is that there are a large number of originalists who are simply positive originalists. They argue that the meaning of the Constitution is its original meaning, but they do not offer a normative theory for following that meaning and may not even believe that we should. Gary Lawson, for example, expressly states that he is not willing to offer a normative theory. Other people claim that originalism is simply a theory of interpretation and does not involve normative questions. Michael Paulsen seems to argue this way, at least at times. Larry Alexander and Sai Prakash (my current and former colleagues) also argue that originalism is simply a theory of what it means to interpret a text. By contrast, my own theory, developed with John McGinnis, offers both a positive and normative theory of originalism.
3. The New Originalism and Constructionist Originalism
In a section entitled “Original Public Meaning, Larry discusses both the original public meaning approach and the emergence of the new originalism.
While Larry’s discussion is accurate, I would break up the matters differently. First, I don’t like the term “the new originalism,” even though it is a very popular term. Part of the problem is that it is a vague. Sometimes it refers to the original public meaning approach as opposed to the original intent approach. Other times it refers to people who embrace construction as a distinct enterprise from interpretation.
But some people who endorse original public meaning, do not endorse (or do not appear to endorse) construction. Similarly, some people endorse construction, but do not endorse original public meaning (such as Keith Whittington). One might talk of original public meaning as the new originalism and construction as the new new originalism. But this all gets confusing and it is better to use a finer grained terminology.
Let me try to clarify matters. There are two issues: whether one favors original intent or original public meaning, and whether one favors construction or not. One might therefore break this into a two by two matrix with four possibilities, except I can’t figure out how to do this on the blog. So let me describe it with four lines:
a. Original intent plus construction –Whittington
b. Original public meaning plus construction – Solum, Barnett, Balkin
c. Original intent plus no construction – Raould Berger?
d. Original public meaning plus no construction – McGinnis & Rappaport, Scalia
Finally, I should note that there are even newer versions of originalism. For example, there is original methods originalism, the position that John McGinnis and I defend, which has been endorsed by other originalists, such as Steve Calabresi. I suppose we could be considered the new new new originalists, but that is just silly.
4. Precedent
Larry also discusses the question of precedent, noting that some originalists accept precedent while others argue that the original meaning should be followed rather than precedent. One can explore this issue further. Some originalists have analyzed this issue in terms of general jurisprudence, claiming that originalism necessarily precludes precedent. Others, however, look at the question by analyzing the constitutional text. Some, such as Gary Lawson, argue that the Supremacy Clause requires that the constitutional text rather than precedent be followed. Others, such as John Harrison, John McGinnis, and myself, argue that the constitutional text allows precedent but (for the most part) does not require it. Instead, the Constitution treats precedent as general common law that is revisable by congressional statute. Still others such as Lee Strang argue that the judicial power incorporates into the Constitution a particular precedent approach.
If the Constitution does allow precedent, then the question is what type of precedent approach should be employed. John McGinnis and I advocate generally follow the original meaning except in certain limited situations, such as when a precedent has been widely and strongly accepted or when overturning it would create enormous costs. I believe that Larry Solum has endorsed following precedent pretty strictly, but his version of precedent involves a much narrower understanding of what precedent covers than the modern version of the doctrine, which largely identifies the precedent with what the court says it is holding.
Posted at 7:30 AM