Academic journal article Harvard Journal of Law & Public Policy

Originalism as a Theory of Legal Change

Academic journal article Harvard Journal of Law & Public Policy

Originalism as a Theory of Legal Change

Article excerpt

INTRODUCTION  I.   ORIGINALISM AND POSITIVE LAW      A. Normative Defenses of Originalism         1. Originalism as a Good Idea         2. Originalism as Law Reform      B. Conceptual Defenses of Originalism         1. What Interpretation Can't Do         2. Interpretation and Theories of            Jurisprudence      C. Positive Arguments for Originalism II.  ORIGINALISM AS THE FOUNDERS' LAW      A. Two Kinds of Legal Change         1. Authorized Change         2. Unauthorized Change         3. Combining the Two      B. Originalism and Legal Change         1. The Rules at the Founding            a. Incorporating Past Law            b. Incorporating the Founders' Law         2. Changes Since the Founding            a. Rules and Outcomes            b. The Founders' Rules of Change            c. Domesticating Doctrines            d. Stare Decisis         3. Originalism as Exclusive Law            a. Premises of Legal Argument            b. Addressing the Alternatives               i. Multiple Foundings               ii. Multiple Sources III. ORIGINAL-LAW ORIGINALISM      A. Original Law and Original Meaning         1. Interpretation and Legal Rules         2. The Substance of Interpretive Rules         3. What Originalists Can Disagree About      B. Addressing Objections         1. Was There Any Law?         2. The Founders' Law and Constraint IV.  ORIGINALISM AND HISTORY CONCLUSION 

INTRODUCTION

Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It's a theory of our law: a particular way to understand where our law comes from, what it requires, and how it can be changed.

This view starts with a common assumption of legal systems, that the law stays the same until it's lawfully changed. A statute that's hundreds of years old can still be good law today, simply because it was properly enacted at some earlier time and has never been amended or repealed. If you start with an old statute book and add everything enacted since, you should end up with the code as it stands today.

To an originalist, what's true of old statutes is also true of our old Constitution, and indeed of our old law generally. Whatever rules of law we had at the Founding, we still have today, unless something legally relevant happened to change them. Our law happens to consist of their law, the Founders' law, including lawful changes made along the way. Preserving the meaning of the Founders' words is important, but it's not an end in itself. It's just a means to preserving the content of the Founders' law.

Not everyone agrees with this picture, of course; not even all "originalists." People use the word "originalism" in lots of different ways. But treating originalism as a claim about law, not just interpretation, gets us past some of the debates that have occupied the field--and it helps us see the way to more fruitful areas for agreement.

At the moment, most defenses of originalism fall into two camps, which we can call "normative" and "conceptual." Normative defenses portray certain interpretive methods as good ideas (because they constrain judges, promote democracy, and so on). These defenses might be right or wrong; more importantly, the good ideas they defend might not be reflected in our law. Maybe American law, as it currently exists, doesn't constrain judges or promote democracy as much as it ought to. If originalism is just a law reform project, it loses much of its rhetorical force. Conceptual defenses, by contrast, start from incontestable legal assumptions (say, that the Constitution is law). They then argue, on philosophical grounds, that the Constitution's meaning just is its original meaning (intention, understanding, public meaning, etc.). But the law doesn't have to reflect good philosophy any more than good policy. So it might be that our legal system, like Canada's or France's, reads our constitutional text some other way or incorporates some other sources of law. …

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