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09/12/2018

John McGinnis on Originalist Interpretation
Michael Ramsey

At Liberty Law Blog, John McGinnis has a series of posts on methods of originalist interpretation:

Originalism Encompasses Text and Structure

“Democracy” Cannot Unlock the Meaning of the Constitution

How Originalism Addresses Consequences

From the beginning of the initial post:

I had the pleasure of being on panel with Pamela Karlan of Stanford Law School at the Eighth Circuit Judicial conference. There she set forth a view of the “modalities” of constitutional interpretation, arguing that judges should consider a variety of factors in interpreting our fundamental law. She opposed originalism. Indeed, original meaning was not even included as a factor, as I remember.

We did not have a chance to respond to one another directly, because the audience was given the time after our talks to ask questions. But I would have said that originalism of the best kind encompasses modalities that help fix meaning and rightly does not include those that don’t. In a series of posts, I will describe how originalism responds to each of Professor Karlan’s various “modalities.” 

The third post is likely the most important and controversial.  It begins:

In the last two posts, I have argued that originalism can comprehend many of the so-called modalities of constitutional interpretation. That is, while some professors, like Pamela Karlan, argue that interpretation can and should be based on many factors, like text, structure, and consequences, originalism takes account of these as well. One major advantage of originalism as opposed to these modalities is that the interpretive legal rules that were applicable at the time of the Constitution discipline the manner of using these factors to arrive at the meaning of our fundamental law. Interpretive modalities as used by Karlan and others tend to make constitutional interpretation a grab bag of factors where the judge picks out whatever factor will lead to a result that accords with his intuition about justice.

The hardest question for the relation of originalism and the modalities is that of consequences to original meaning. My tentative view is that the interpretive rules of the time may well permit the use of consequential reasoning in limited circumstances. Thus, when the original meaning of the text is otherwise unclear and when the consideration of consequences are those that would help determine whether an interpretation  advances the provision’s purpose and values, this aid to interpretation should be entertained.

I agree with Eric Segall that this approach carries the danger of watering down originalism to the point it's hard to distinguish from living constitutionalism (see his comment on Monday's post here).  But Professor McGinnis has arguments for how it can be contained.