Academic journal article Northwestern University Law Review

Grounding Originalism

Academic journal article Northwestern University Law Review

Grounding Originalism

Article excerpt

Introduction

"What makes a method of legal interpretation correct?"1 The question is an urgent one. Americans disagree about their Constitution and about how to interpret it. But perhaps we can make forward progress if we first push the debate back a step or two. If people disagree about interpretation, and if they make earnest arguments on either side, maybe they can still reach agreement on something prior (and thus far neglected)2: what might make their arguments good arguments? What would make an interpretive method correct?

Over the past several years, we've sought to articulate a view of American law that responds to this question, as well as to specific interpretive debates. That view contains three core claims.

1. Theories of legal interpretation ought to give more emphasis to questions of law.3 Whatever a theory's conceptual elegance or normative attractions, it also matters whether that theory already reflects our law or is instead a call for law reform. What our law makes of a legal text is a legal question, and it deserves a legal answer. That answer depends in part on principles of abstract jurisprudence, which determine the law in general, and in part on particular rules of our legal system, which determine the effect of particular instruments (whether contracts, statutes, or constitutions). Those particular rules might be legally binding, even if they're not the best possible rules. So our deepest disputes about interpretive theory, just like our disputes about tax rates or drug policy, might turn out to have particular answers in our legal system, even if the best answers remain a matter of dispute.

2. As it turns out, the particular rules of our legal system happen to endorse a form of originalism. 4 Our law today incorporates our original law by reference. Officially, we treat the Constitution as a piece of enacted law that was adopted a long time ago; whatever law it made back then remains the law, subject to various de jure alterations or amendments made since.5 And we identify modern law by way of this past law, the way a nemo dat rule identifies today's property holdings by way of yesterday's transfers: explaining how a legal rule enjoys good title today means explaining how it lawfully arose out of the government established at the Founding.6 This "original-law originalism"7 is broad and inclusive, in that it serves as a criterion for the rest of our constitutional law, "including of the validity of other methods of interpretation or decision."8

To be sure, government officials don't always satisfy this criterion, any more than ordinary citizens always comply with laws against murder or tax evasion. But in conceding that-and in calling originalism the "official story" of the legal system9-we also don't mean to portray it as a fable recited at judicial campfires and then ignored when the real work gets done. Rather, we think that our legal system reflects a deep commitment to our original law, publicly displayed in our legal practice. Indeed, originalism could aptly be called the "deep structure" of our constitutional law, present in our frequent practices of identifying, justifying, and debating the content of our law.10

3.The binding force of our original law has important consequences for the present day. In principle, the Founders' law might have allowed for just about anything. It might have endorsed many different methods of interpretation or rules of legal change-from hyper-literal strict construction to the "equity of the statute,"11 from Article V amendments to evolving bodies of customary law. But to claim that, in fact, our original law actually permits or requires any of these things is to make an empirical and falsifiable claim, one that has to be supported by historical evidence and not only by modern policy preferences. The original-law approach may be capacious in theory, but it's "exacting in application."12

If we're right about these three claims, much else follows. …

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