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02/14/2015

Kurt Lash: Safe Harbor Originalism
Michael Ramsey

At Liberty Law Blog, Kurt Lash: Safe Harbor Originalism.  From the introduction:

Originalism’s success has resulted in a rapidly expanding body of scholarship by a richly diverse group of constitutional theorists, many of whom “tweak” the method in order to bring it within their preferred normative theory. This is the cost of success—everyone wants to play.

There are many ways to be an “originalist.” However, not all ways are originalist, and even those that are arguably originalist will not be equally accepted by practitioners of the method. If originalism is to maintain a degree of coherence as an interpretive option, its advocates are now pressed to define it, and to do so in a manner that distinguishes the method from its rivals while still leaving room for healthy exploration, disagreement, and development.

Thanks to the work of Professor Lawrence Solum, we have an easily understood, robustly theorized, and broadly accepted definition. Originalism claims that 1) the meaning of a text is fixed at the time of its adoption and 2) this constrains judicial application of the text. There may be other ways to define originalism, but any work that accepts Solum’s definition will be accepted as “originalist” by most academics, lawyers, and judges.

How does one go about determining the textual meaning that was fixed at the time of adoption? Once again, different scholars have adopted different methods. What follows is an originalist methodology that I believe all originalists accept as a properly originalist methodology. It has four basic steps, and to fall within the safe harbor, all four must be completed, and completed in order.

I agree with the first three, anyway.