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04/18/2017

Larry Solum's Ten-Part Defense of Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has completed his ten (!) part series defending originalism.  There are links to all ten posts here.  (The defense is based on this longer article (143 pages), as effectively summarized in this congressional testimony (only 12 pages)).  So, originalism, at any length you'd like.

Here is the overall conclusion from the final post:

My goal in these ten posts has been to provide an overview of the case for originalism.  The core of that case is contained in two claims:

  • The Fixation Thesis: The communicative content of the constitutional text is fixed at the time each provision is framed and ratified.
  • The Constraint Principle: Constitutional practice should be constrained by the communicative content of the text; at a minimum, constraint requires consistency with the text.

The Fixation Thesis should not be controversial.  When we interpret old documents, we use the conventional semantic meanings of the words and phrases that were in effect at the time the document was written.

The Constraint Principle makes a normative claim for which two clusters of pro tanto reasons were provided: (1) the Constraint Principle better achieves the rule of law than does living constitutionalism, because (a) it better serves the rule of law values of stability, predictability, certainty, consistency, and publicity, (b) it better prevents a downward spiral of politicization of the law, and (c) it avoid the great evil of judicial tyranny; (2) the Constraint Principle better achieves legitimacy than does living constitutionalism, because (a) it provides greater democratic legitimacy than does a committee of nine officials with life terms who are unconstrained by the text, (b) it avoids the transparency problem associated with most forms of living constitutionalism, and (c) it limits judges to their legitimate judicial role.

For originalism to be meaningfully different than living constitutionalism, it must be the case that the original meaning of constitutional text is not indeterminate and that the degree of underdeterminacy is not so substantial as to permit almost all living constitutionalist results.  In fact, the original meaning is quite determinate with respect to the hard-wired constitution (the basic plan of government) and even seemingly open-textured provisions such as the Equal Protection Clause are far more determinate than many nonoriginalists assume.

One of the themes of these posts is that the "great debate" is complex.  This should come as no surprise.  Originalists and living constitutionalists have been arguing with each other and among themselves for decades.  Nonetheless, progress can be made in this debate.  The aim of this series of posts has been to show that progress is possible, if originalists and nonoriginalist living constitutionalists are willing to debate the issues on the merits, with an open mind and a dedication to scholarly rigor.