Academic journal article The Yale Law Journal

Originalism without Text

Academic journal article The Yale Law Journal

Originalism without Text

Article excerpt

(i) The Fixation Thesis: that "[t]he meaning of the constitutional text is fixed when each provision is framed and ratified." (2) (2) The Constraint Principle: that this "original meaning of the constitutional text should constrain constitutional practice." (3) 

These core ideas lie at the heart of the "New Originalism," the movement's dominant school. (4) They're recognized as authoritative by both supporters and opponents. (5) Yet the core ideas serve better as a summary than a definition; using them to circumscribe the theory is a mistake. That's because originalism doesn't need to be about the meaning of any text. A society can be recognizably originalist without having a written constitution, written law, or any writing at all. If having a text isn't fundamental to originalism, then originalism isn't fundamentally about the meaning of texts. We could exclude such a society by stipulation if we wished, (6) but that would save the core ideas only by sacrificing the coherence of the theory they describe.

In our society, of course, we do have a written Constitution, and debates about its meaning figure centrally in our constitutional law. Even so, these linguistic debates should be kept in their place. Treating the core ideas as firm requirements would exclude, without justification, a variety of theories more coherently brought within the originalist tent. A number of scholars, this author among them, have argued for shifting focus from original meaning to our original law: the law of the United States as it stood at the Founding, and as it's been lawfully amended since. (7) That law might well have been shaped in part by the original meaning of legal texts--so that the Constitution's meaning would indeed have been fixed at the Founding, and this fixed meaning would indeed constrain constitutional practice. The core ideas would then be contingent consequences, but not necessary features, of a broader commitment to originalism. Other scholars look to still different facts about the Founders--such as the values they expressed, the particular policies they endorsed, or the interpretive methods they employed. (8)

All of these theories have something in common. They treat the content of American constitutional law as properly resting on its origins--on features of our legal Founding that remain legally operative today. Accepting them means treating modern law as vulnerable to history, as open to refutation by claims about the past. But each theory looks to different features of the Founding, and each might occasionally conflict with a view centered on the original meaning of language. Given the strong attachments or aversions people have to the "originalist" label, it'd be nice to know how broadly it applies. Perhaps theories like these really ought to be cast out of originalism, into outer darkness, where there shall be weeping and gnashing of teeth. But that kind of move requires argument, not just stipulation.

I

Consider the following hypothetical:

The society of Freedonia has no writing and no written law. Its legal rules are passed down through oral traditions, which provide for councils of elders to do limited judicial work. Freedonia goes through a period of legal tumult, in which influential council decisions are said to have misstated the traditional rules and to have exceeded the councils' authority. A Great Council is held, in which it's agreed--in substance, and without resolving on any canonical form of words--that all innovations to date are to be accepted as necessary evils, but that no new innovations are to be allowed, and that the ancestral traditions are otherwise to be preserved inviolate. Generations pass, and again some councils begin to overstep these limits, arguing that the traditions must be altered to accommodate modern circumstances. Other Freedonian elders criticize their fellows for failing to apply the law as approved at the Great Council. … 
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