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Michael Ramsey »

08/30/2017

David Weisberg on the Dorf-Solum Debate
Michael Ramsey

David Weisberg ocmments; 
 
Jerry Seinfeld once characterized his TV sitcom as “a show about nothing”.  With all due respect to Profs. Michael Dorf and Larry Solum, their debate over “How Determinate is Originalism?” is at bottom a debate about nothing.
 
Original-public-meaning originalism is supposed to be a method for fixing the meaning of words and phrases in the Constitution.  Profs. Dorf and Solum assume that originalism produces results that do assign such meanings, and they then enter into a debate about the degree of “determinacy” attaching to those assigned meanings.  But the assumption they both rely on is false, because the methodology of original-public-meaning originalism never reaches any result.  Instead, the methodology leads to an infinite regress from which the conscientious originalist can never escape.
 
I have shown that original-public-meaning originalism generates the following Paradox of Originalism: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.
 
A few moments of reflection will confirm that the Paradox of Originalism ensures that the conscientious originalist who endeavors to determine the meaning of a word or phrase in the Constitution can never complete that task.  There will always be a word or phrase in the “definition” of the constitutional word or phrase that might itself require a time-dated original definition.  The methodology therefore never reaches a conclusion.  Because originalism never reaches any conclusion, there is nothing that can be judged to be either determinate or indeterminate in any such conclusion.