Is the right to carry firearms established in Bruen the same kind of intellectual legerdemain the Court rejected in Dobbs?
One sign of the success of an academic movement, like originalism, is that it becomes attractive enough to develop multiple theories that promote the movement in different ways. The existence of these different theories has advantages. The various theories provide multiple perspectives and differing defenses of the movement, making it more likely to prevail in the marketplace of ideas by providing them with a broader appeal. But the existence of various theories also presents challenges. First, how should the objective of the movement be defined? In the case of originalism, how can we define originalism in a way that includes all of the different theories?
Second, how can the terms in the theories be made consistent? In the case of originalism, it is useful to have a common vocabulary so that the different theories can debate and communicate with one another and other scholars about their theories. But the different perspectives of the various theories leads them to use terms in conflicting ways.
Unfortunately, meeting these challenges is not so easy. It takes hard work, mutual respect, and compromise among the adherents of different views. But it is extremely important that these challenges be met if the originalist movement is to succeed in its overall objective of establishing an originalist judicial and legal system.
The Meaning of Originalism
Let me start with the first question: What is originalism? How can we define the term so that it includes the major theories? Larry Solum has the leading view here, defining modern originalism as including those who accept two beliefs—what he calls the fixation thesis and the constraint principle. Solum’s view appears to have been accepted by most originalists and there is much to be said for it as a consensus view of originalism.
The fixation thesis is the view that “the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified.” In other words, the meaning of the text is the meaning it had when it was enacted—its original meaning. The constraint principle is the view that decision-makers, especially judges, should “at a minimum” be constrained by the original meaning of the constitutional text.
In my view, treating these two principles as the core of modern originalism is both helpful and enlightening. The version of originalism that John McGinnis and I champion (original methods originalism alongside a normative view based on the goodness of the Constitution) certainly satisfies these two principles. Under our view, one discovers the original meaning of the constitutional text by using the methods that people at the time of the Constitution’s enactment would have employed to interpret it. This view certainly complies with the fixation thesis. We believe that the original meaning determined by applying these methods fixes the meaning of the constitutional text. Our view also satisfies the constraint principle. In our view, the only situation where one ought to depart from the original meaning is in following certain non-originalist precedents, especially those that have been widely accepted. We hold that precedent is authorized by the Constitution itself, and those departures from the original meaning are relatively limited. Therefore, our view does not violate the constraint principle’s requirement that the original meaning should constrain decision-makers.
A bigger question, I believe, arises for the version of originalism advanced by Will Baude and Stephen Sachs. Under their theory of original law originalism, we are bound by the law that existed at the time of the enactment of the Constitution unless that law has been lawfully changed. The law that existed at the time of the Constitution’s enactment includes what they call the law of interpretation. This law governs how the Constitution should be interpreted.
Baude and Sachs are clear that the law of interpretation does not necessarily yield interpretations that conform to linguistic meaning. But if that is true, then this theory risks requiring judges to be bound by interpretations that do not conform to the text’s original meaning. And thus the theory might violate either the fixation thesis or the constraint thesis, or both.
For example, consider the absurdity rule, an interpretive rule that applied at the time of the Constitution. Under this rule, an interpretation of the ordinary or legal meaning of a provision that was absurd would not be followed. Consequently, original law originalism would recommend following an interpretation of a provision that the theory did not regard as conforming to the original meaning.
If original law originalism, which is an important modern theory of originalism, does not conform to Solum’s two principles, then the principles may need to be modified. Perhaps modern originalism should be defined as focused on either the original meaning or the original law.
Terms within Originalism
Let me now move to the second issue—the various names that are used for different theories within originalism. One type of originalism is called “the New Originalism.” This term usually refers to a group of theories authored by Randy Barnett, Evan Bernick, Larry Solum, and Keith Whittington, which place an important emphasis on what is called the interpretation and construction distinction. To oversimplify, these theorists believe that for a significant portion of the Constitution, the original meaning of the language can “run out” because the language is vague or ambiguous. As a result, these provisions must be given effect by considering matters other than the original meaning.
But there is a problem with calling this group “the New Originalism.” This theory is not the only new theory these days. Other new theories include Baude and Sach’s original law originalism and McGinnis and Rappaport’s original methods originalism. Reserving the term “New Originalism” for only a portion of the new originalist theories is confusing and inaccurate. McGinnis and I have suggested changing the name of the new originalism to “constructionist originalism” but the new originalists have rejected that. Fair enough—no one should be forced to accept a name they don’t like. But that still leaves us looking for an appropriate name for the new originalism.
Unfortunately, the problems in this area continue. Some of the new originalists have sometimes taken to simply calling their theory original public meaning originalism. I think that is problematic. First, Justice Scalia was an important developer of original public meaning, but he did not accept the interpretation/construction distinction. Second, I regard the best form of McGinnis’ and my own theory of original methods originalism to be a type of original public meaning. Thus, reserving original public meaning for the new originalism again seems to risk confusion.
What can one say about these matters? The basic problem is that these different theories have differing views about their subject and try to select names based on their own perspective. Since the theories disagree, it is not surprising that there is disagreement about the names. But this disagreement has significant costs. The first cost is that it creates confusion, especially for those that are not well versed in the theories. Since that is most people, this is a serious problem. Second, these disagreements create friction among the different theorists, since they each view the other’s names as inappropriate or aggressive.
I am not sure that there is a single solution to this matter. But one essential component is that the different theorists should look at these matters not just from their own perspective, but also from an ecumenical perspective. In choosing names, we should be sensitive to the overall situation and how matters can be understood by people who are not very familiar with the theories. We should remember that, while we are competing over our theories, we should also be cooperating in promoting originalism in a wider sense. It is to that wider goal of establishing originalism in general as the dominant constitutional interpretive theory that originalist theorists should pledge allegiance.
One good example of this ecumenical approach is the use of the term “original meaning” in the scholarly literature. While there is disagreement between theories that advocate original public meaning and those that advocate original intent, original meaning has been used as a term to cover both theories. This helps to unify the field: despite their differences, both theories advocate the same end point. In this way, differing theories seem to be pursuing the same objective and are using a term to have the same meaning.