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11/13/2017

Stephen Sachs: Originalism Without Text
Michael Ramsey

In the current issue of the Yale Law Journal, Stephen E. Sachs (Duke) has the essay Originalism Without Text (127 Yale L.J. 156 (2017)). Here is the abstract: 

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution’s words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren’t fundamental to originalism, then originalism isn’t fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

And from the first substantive section:

 Consider the following hypothetical:

The society of Freedonia has no writing and no written law. Its legal rules are passed down through oral traditions, which provide for councils of elders to do limited judicial work. Freedonia goes through a period of legal tumult, in which influential council decisions are said to have misstated the traditional rules and to have exceeded the councils’ authority. A Great Council is held, in which it’s agreed—in substance, and without resolving on any canonical form of words—that all innovations to date are to be accepted as necessary evils, but that no new innovations are to be allowed, and that the ancestral traditions are otherwise to be preserved inviolate. Generations pass, and again some councils begin to overstep these limits, arguing that the traditions must be altered to accommodate modern circumstances. Other Freedonian elders criticize their fellows for failing to apply the law as approved at the Great Council.

Are these critics originalists?

(Note:  SRSRN version previously noted here).