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02/24/2017

Has Originalism Been Tried?
Mike Rappaport

Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego.  It was another very enjoyable and productive event.  University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post:

I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was one of a small but non-trivial number of critics of originalism there, and the fact that we were included also speaks well for the conference, of course.  I learned things worth learning and would be delighted to go again.

Richard continues the blog post by discussing the views of some originalists that real originalism has never been tried.  He then expresses some skepticism about advocating a hypothetical approach of this type.

I have to admit that I don’t hear a lot originalists arguing that the approach has never been tried.  I’m not sure what these people have in mind.  I suppose they could have in mind new research techniques, such as corpus linguistics, that would allow much better understandings of the original meaning of language at the time of the framing.  But this technique is mainly about allowing modern interpreters to understand the original meaning and does not suggest that people at the time of the Constitution did not practice originalism.

In my view, the original methods approach – which requires interpreters to employ the interpretive rules that were deemed applicable to the Constitution at the time of its enactment – is the proper originalist interpretive approach.  Given that this approach requires that we employ the interpretive rules that existed at the time of the Constitution, it might seem problematic to claim that originalism had never been tried.

But things are a bit more complicated than this.  At the time of the Constitution, there were differing interpretive views – most importantly, the approaches of Thomas Jefferson and John Marshall.  They each sought to justify their approaches based on original methods –  that is, based on the applicable interpretive rules at the time.  So the leading approaches followed original methods, but they differed on its content.

What should originalists do today?  In my view, we should follow the correct original methods approach.  That is, we should determine what the proper approach was at the time and follow it.  In my view, the proper approach was closer to Marshall’s approach, but was not exactly Marshall’s.

So, I am advocating both something that was tried (the original methods) and something that was not tried (employing only a quasi-Marshallian approach).  But I see nothing unrealistic or problematic about advocating this.

But I should add that there no reason to expect or require that originalism work perfectly in accord with what I expect or desire.  Even in an originalist world, where everyone accepted originalism, it would be unlikely that all originalists would agree.  In fact, one might expect different originalist parties.  One possibility is a split between liberal originalism and conservative originalism, but there are other possibilities.  Would that be real originalism, even though I would presumably disagree with some of it?  Sure.  That may be the only kind of originalism we could realistically expect, but despite the disagreement it would still be much better, in my view, than what we have now.