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Original Methods Originalism Part I: The Basic Idea and the Different Versions

One approach to constitutional originalism is called original methods originalism, which John McGinnis and I have developed.  While the theory has received significant attention, the overall relationship of the different parts of the theory have not always been understood.  Therefore, I thought it would be useful in a couple of posts to discuss various aspects of the theory and how they relate.

In these posts, I will explore 5 different aspects of original methods originalism: 1) the basic idea, 2) the different versions of original methods, 3) the convergence thesis, 4) the language of the law thesis, and 5) the minimization of the construction zone thesis.

The Basic Idea

The basic idea of the theory is that the original meaning of the Constitution requires not merely reference to original word meanings and the syntactic or grammar rules at the time of the Constitution, but also to the interpretive rules followed at the time.  Interpretive rules are the rules that govern how language is interpreted.

The reason the interpretive rules are important is that they help to determine how provisions are interpreted.  To see their importance, imagine that at the time of the Constitution, an interpretive rule existed as to how to interpret a list of rights, such as the Bill of Rights.  Under this interpretive rule, imagine that such a list was construed as illustrative, not as exhaustive – that is, other unenumerated rights might have been protected as well.  (I am not claiming here that such a rule existed or did not exist.  This is a hypothetical.)

If such a rule existed, then the authors of a bill of rights would have written it with the understanding that it would be understood as illustrative.  Readers at the time would also have understood it that way.  Then, if judges interpreted the bill to be exhaustive, then would not be following the meaning that the authors conveyed and readers would have understood.  They would be departed from the original meaning.  The same would be true if the interpretive rule required that the list be treated as exhaustive and the judge read it as illustrative.

The Different Versions of Original Methods

While this is the core idea of original methods, it is important to emphasize that there are different versions of original methods.  In our view, original methods is not really a stand alone theory of interpretation, but instead is the result of applying other interpretive approaches: original intent and original public meaning (and positivist originalism).  We believe that each of these views leads to original methods.

The original public meaning view holds that the language of the Constitution should be understood as a reasonable and informed person at the time would have interpreted it.  But if the authors and readers would have applied the interpretive rules to language, then of course the original public meaning would require that the original interpretive rules be applied.

A similar argument, but one that is more complicated, applies to original intent.  Under the original intent approach, the meaning of language is the meaning intended by the authors of the language.  A significant problem for the original intent approach is the problem of aggregation: what does one do if the multiple authors of a law have different intents?  This is a big problem for the Constitution, which was enacted by thousands of authors in multiple states at different times.

The problem of aggregation, however, is solved if the authors intended to follow the conventional interpretive rules.  Under these rules, one does not aggregate intents; one simply applies the interpretive rules.

According to original methods, the original intent of the authors of the Constitution would not have been to follow their own individual intents, but instead to follow the conventional interpretive rules.  After all, if one asked an individual in a particular ratification convention (consisting let’s say of 500 people), how he expected and intended the Constitution to be interpreted, he would not say that it should be interpreted based on his intent or even based on the multiple intents of different people in the different ratification conventions, which were not really knowable.  He would likely say that he expected and intended it to be interpreted based on the conventional interpretive rules.

Thus, the original intent approach also leads to a version of original methods, which interprets based on the original interpretive rules.

(I should also add that positivism originalism, which treats the Constitution as law and argues it should be interpreted in accord with the law as it existed at the time of its enactment, also leads to original methods.  But I will leave that argument for another time.)

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on May 30, 2017 at 22:46:57 pm

THE
CHURCH OF
ORIGINALISM
S. L. Whitesell
*
“On every question of construction, [we] carry ourselves back to the time
when the Constitution was adopted, recollect the spirit manifested in the de-
bates, and instead of trying what meaning may be squeezed out of the text,
or invented against it, conform to the probable one in which it was
passed . . . . Laws are made for men of ordinary understanding, and should,
therefore, be construed by the ordinary rules of common sense. Their
meaning is not to be sought for in metaphysical subtleties, which may make
anything mean everything or nothing, at pleasure.”
Thomas Jefferson 1823

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SJ

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.