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Less than four decades ago, leaders in legal thought such as Attorney General Edwin Meese III and Professor, Judge, and, later, Justice Antonin Scalia began publicly making the case for originalism (sometimes called “textualism”) as an approach to the interpretation of constitutional, statutory, and other legal texts. In the intervening years, as the “approach” has matured into a jurisprudential philosophy and a school of legal thought that finds daily application in the work of lawyers, judges, and other practitioners, it has necessarily developed its own internal debates.
Law & Liberty this morning posts an extremely valuable essay by John O. McGinnis, the George C. Dix Professor in Constitutional Law at Northwestern University, sorting out three “fault lines” within current discussions about originalism.
Professor McGinnis offers a distinction between constitutional “interpretation” and “construction.” He offers a term, “construction zone,” which he defines as the area in which a term or phrase in the Constitution is vague or ambiguous, “interpretation” of the text only being able to carry one a limited way to a full understanding of the meaning and, thus, requiring “construction” to fill out the meaning so aso to apply the text to a case or controversy. A goal of scholarship, including the use of tools of history, historiography, and the study of language, is to make the “construction zone” as narrow as possible.
He notes the tensions between “judicial restraint” and “judicial engagement,” raising such issues as when courts should defer to the interpretations of texts by political branches and when courts assert themselves to enforce a [more] faithful interpretation of an applicable constitutional text.
He considers the role of stare decisis in jurisprudence and considers the problem of how to deal with prior decisions, especially by the Supreme Court, that later scholarship shows arrived at incorrect interpretations of constitutional texts.
The essay suggests some answers but, more, is a road map to debates likely to occur in the next few years.
Along the way he takes note of recent and on-going work by such scholars as his colleague Mike Rappaport; Michael McConnell; Gary Lawson; Larry Solum; Nathan Chapman; and Randy Barnett.
You will find Professor McGinnis’s essay linked and set forth below.
As a jurisprudential theory becomes dominant, it tends to fracture. One reason is that academics are naturally both fractious and enterprising. They gain justified renown by recognizing subtle frailties as well as important difficulties in a major theory and by trying to improve both its content and articulation. Because there is so much at stake in these matters practically, litigants and politicians also try to reorient the theory to serve their own interests.
So it has been with originalism. Originalism began in opposition to the free form jurisprudence of the Warren Court and largely defined itself as a theory of judicial restraint with that restraint being the anchor of original intent of the Framers and subsequently the original meaning of the Constitution’s text. But with the disappearance of its original opponent, originalism had to offer a positive defense and definition of itself. Currently originalists address fundamental questions about originalism, such as normative ones like why one ought to be an originalist, and positive ones like how to find the original meaning. Three issues currently being debated represent fundamental fault lines in contemporary originalism, the resolution of which may shape the future of constitutional jurisprudence.
Read the rest here.