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10/16/2018

Larry Solum on New Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has this entry in his "Legal Theory Lexicon":  The New Originalism.  From the introduction: 

The phrase “New Originalism” was first used Evan Nadel in 1996, but the phrase was popularized by Randy Barnett and Keith Whittington a few years later. Of course, this phrase is just a name that theorists use, and it has been used in different ways. For our purposes, we can think of the New Originalism as a subfamily of originalist theories that accept the Fixation Thesis and the Constraint Principle, and reject the old originalist idea that a particular kind of intention (the purposes or expectations of the framers) is the touchstone.

Some, but not all, of the new originalists add the following two ideas:

  • The Public Meaning Thesis: The original meaning of the constitution is the public meaning that each provision had at the time it was framed and ratified.
  • The Interpretation-Construction Distinction: Constitutional practice consists of two distinct activities:
    1. Constitutional Interpretation is the discovery of the linguistic meaning of the constitutional text.
    2. Constitutional Construction is the determination of the legal effect given to the text, including (a) doctrines of constitutional law, and (b) decision of constitutional cases.

These two ideas have several implications, but one implication is especially important. The Old Originalism is associated with an antipathy to judicial discretion in constitutional interpretation and construction. One of the motives for the Old Originalism was the belief that the Warren Court had broken the tether between the constitutional text and constitutional law and that judges were now importing their own moral and political beliefs into constitutional doctrine. Ideally, originalist judging would be both constrained and restrained. Constrained, in that the original meaning would provide an objective basis for the resolution of all or almost all constitutional cases. Restrained, in that originalist judges would rarely use the power of judicial review to strike down legislation or executive action. 

The ideas associated with the New Originalism did not fit the old idea of perfect constraint and restraint. First, public meaning seems less constraining than original intent. The public meaning of some provisions of the Constitution is vague (at least on the surface). Phrases like “freedom of speech” or “legislative power” may have a core of determinate meaning, but they also seem to have a penumbra—a set of borderline cases. New Originalists call this area of underdeterminacy, “the Construction Zone.” If there is a substantial construction zone, then the constitutional text cannot do all the work of deciding constitutional cases. Moreover, some of the theorists who are called “New Originalists” have theories of constitutional construction that permit normative considerations to enter into the decision of cases inside the construction zone: Randy Barnett and Jack Balkin are prominent examples.

Professor Solum is a leading (perhaps the leading) theorist of New Originalism, so I hesitate to disagree with him on its definition.  But still, I wonder about this definition.  Under it, Justice Scalia was a New Originalist.  (In 1987).  That does not capture the way I think about New Originalism.  I see it as much newer than that -- more a 21st century phenomenon, associated (as he says) with scholars such as Randy Barnett, Jack Balkin and Keith Whittington.  To me, its central characteristics are (a) the interpretation-construction distinction, which I would call an essential rather than an optional attribute, and (b) strong skepticism about the framers' expected applications as evidence of public meaning.  Using these characteristics, Justice Scalia was not a New Originalist, and neither were most of the originalist writings of the 1990s and early 2000s. 

Perhaps, though, what I'm describing is the New New Originalism.  There's no doubt that Scalia pioneered a break with the Old Originalism that (as Professor Solum says) emphasized framers' intent and judicial restraint.  My point is that there was another break in the late 200os (0r so) that departed from Scalian originalism.  The question is which of these breaks should be labeled the shift to New Originalism.