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09/07/2017

John McGinnis on Original Methods Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Original Methods Originalism Is Public Meaning Originalism.  From the introduction:

Professor Larry Solum has written an excellent series of posts that that help clarify the question of whether public meaning originalism constrains judges. He both distinguishes the concept of constraint from other related concepts like determinacy and helpfully suggests a framework for empirically analyzing the degree of constraint that originalism provides.

Larry, however, makes one puzzling assertion in the first of these posts. He suggests that there are alternatives to public meaning originalism still supported by serious originalist scholars. He included as one of these alternatives “original methods originalism” – the view of originalism that Mike Rappaport and I have propounded. But original methods originalism is emphatically a form of public meaning originalism.

Briefly described, public meaning originalism is the view that the meaning of the Constitution’s text is that which would be attributed by a reasonable observer or reader at the time the relevant provision of the Constitution is enacted. Original methods originalism contends that the reasonable reader would follow the meaning that flows from the interpretive methods applied to a legal text of the Constitution’s kind. We defend that view by arguing further that the Constitution is written in the language of the law. Thus, a reasonable reader would recognize that the context of the document demands the use of legal terms and interpretive rules, particularly to clarify and make more precise terms and provisions that might otherwise seem unclear. ...