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. I will make two today and two in tomorrow’s post.
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 exists 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.
Update: I changed the last paragraph to correct a possible error.