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05/10/2020

A Further Exchange between F.H. Buckley and Roger Pilon
Michael Ramsey

At Law & Liberty, Roger Pilon and F.H. Buckley continue their debate over originalism (see earlier here, here and here):

Roger Pilon:  Why I Am an Originalist—Properly Understood

F.H.Buckley: Originalism: Surrebutter

The latter concludes:

The American originalist is resolutely uninterested in other countries, however, even those that are just as free and committed to the rule of law. That’s a weakness in their case. It opens them up to the charge that they’re simply right-wingers.

While I think this is a bit unfair, it raises an important question for originalist theory: to what extent is originalism uniquely applicable to the U.S. Constitution, as opposed to other country's Constitutions?

My view is that originalism is best understood as a consequence of a commitment to the rule of law.  Without a commitment to the text and original understanding, the Constitution becomes subject to political forces (most notably, in a system of judicial review, to the policy intuitions of judges).  Originalism rejects policy-driven updating of fundamental legal rules as destructive of the rule of law (a rejection that follows from originalism's conclusion that rule of law values outweigh the gains that might accrue from judicial updating).  I think that account of originalism has general applications -- that is, it doesn't depend on anything particular to the U.S. Constitution.  So, on this view, originalists should be interested in other countries (and indeed I think a good number of them are).  Nonetheless, Professor Buckley is right that originalism in the U.S. is often justified by reference to particular aspects of the founding era in the U.S.  For these originalists I agree it would be especially useful to ask to what extent their vision of originalism applies to other constitutions.