Academic journal article Texas Law Review

Loose Constraints: The Bare Minimum for Solum's Originalism*

Academic journal article Texas Law Review

Loose Constraints: The Bare Minimum for Solum's Originalism*

Article excerpt

I. Introduction

Originalism as a theory has grown progressively larger and more inclusive over time. Its earliest disciples, such as Raoul Berger, advocated a strict adherence to the original intentions of either the framers or the ratifiers of the Constitution.1 As the theory evolved and originalists responded to criticism, looser variations emerged, such as a version that bases its analysis on the communicative content of the text instead of the founders' intentions2 and the view that the original public meaning of the text is binding on interpretation.3 One of the more recent theories that has emerged in the context of "New Originalism" involves the "interpretation- construction distinction": the idea that the process of discovering meaning (interpretation) is separate from the process of determining that meaning's legal effect (construction).4

Notable originalist scholar Lawrence B. Solum's article Originalism and Constitutional Construction primarily serves to advance his theories regarding the ineliminable nature of construction as it applies to the interpretation-construction distinction.5 However, in justifying this position, Solum also proposes a definition for what qualifies a theory as being originalist.6 Solum identifies two key propositions that he claims all originalist theories share, which he labels the "Fixation Thesis" and the "Constraint Principle."7 Solum has honed these terms over several articles and publications8 but, until now, has not been as insistent about their universality and centrality in originalist doctrine.9

The Fixation Thesis stands for the proposition that "the linguistic meaning of the constitutional text is fixed for each provision at the time that provision was framed and ratified."10 It is relatively uncontroversial- virtually all schools of originalist thought (e.g., framers' intention, ratifiers' intention, and original public meaning) fix meaning for the purpose of interpretation at roughly the time of the text's creation.11 Even relatively unorthodox originalist theorists such as Gary Lawson agree on the fixity of meaning for the purposes of interpretation.12

The Constraint Principle, however, is significantly more complex and subject to more wide-ranging disagreement.13 The authors whom Solum identifies as adhering to the Constraint Principle range from denying the need for construction almost entirely14 to actively encouraging construction to "flesh out" the text.15 Solum acknowledges the controversial nature of the Constraint Principle and the large number of contrasting viewpoints on the issue,16 but he maintains that all originalists accept the Constraint Principle and that it is a defining characteristic of all originalist theories.17

Given the uncontroversial nature of the Fixation Theory in even quasioriginalist (and some nonoriginalist) schools of thought, the true test of whether a theory is originalist under Solum's definition will come down to whether or not it sufficiently accepts the Constraint Principle. The bare minimum that can be considered constraint also serves as Solum's dividing line between what is originalist and nonoriginalist. Thus, determining what does and does not satisfy the Constraint Principle is crucial to Solum's theory of originalism. However, Solum does curiously little to define these minimum standards beyond noting that minimal constraint "limits the range of possible constructions to those that are consistent with the constitutional text."18

This Note aims to identify what Solum counts as the bare minimum for a theory that accepts the Constraint Principle and what it means to be "consistent" with the original text. It then examines whether acceptance of the Constraint Principle is a useful distinction for determining whether or not a theory can be properly considered "originalist." More than just an argument over labeling, the distinction between what is and is not originalist has importance when drawing the lines of academic debate. …

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