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07/29/2020

Larry Solum's Legal Theory Lexicon on "The New Originalism"
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon has an updated entry for "The New Originalism."  From the introduction:

This entry in the Legal Theory Lexicon focuses on what is called "New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, "New Originalism" refers to a cluster of originalist theories that reject a set of ideas from older originalist theory, including (1) original intent originalism (in the form that focuses on the application preferences of the Framers) and (2) the idea that the application beliefs of the Framers are binding. 

Many New Originalist theories also endorse the following two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. But some theorists who are called "New Originalists" endorse other theories of original meaning, such as "original methods originalism" and reject the idea the there the constitutional text is substantially underdeterminate.

I'm not sure if this description is revised from earlier versions of the Lexicon, and I'm not sure if it's the best way to describe "New Originalism."  If it is, then the founder of "New Originalism" is really Justice Scalia, in his 1986 speech "Original Meaning" (available, among other places, in Christopher Scalia and Ed Whelan's compilation of his speeches, "Scalia Speaks," p. 180).  Among other things, on this definition "New Originalism" is not so new.  But also, I think the newer development in originalist theory is the idea of the interpretation/construction distinction, which Professor Solum says some but not all "New Originalists" endorse.  So in contrast I tend to think of "New Originalism" as specifically referring to the idea of the interpretation/construction distinction.  People like Justice Scalia, who embraced original meaning but rejected construction, don't really seem like "new" originalists to me. 

I would suggest (as I have in the past) three categories of originalism:

(1) Original intent (for example, scholars such as Larry Alexander and Richard Kay, plus Judge Bork)

(2) Original meaning (Justice Scalia, scholars such as Michael Paulsen, Gary Lawson, Michael Rappaport and John McGinnis)

(3) Original meaning plus interpretation/construction distinction (scholars such as Randy Barnett, Keith Whittington and Professor Solum).

I would call only category (3) "New Originalism" (although, as the Lexicon says, these are "just names that carve up the theoretical landscape," so as long as it's clear how they are being used, the particular labels do not matter so much).

The entry continues with a number of additional important points, including this one: 

The New Originalism has given to a new set of disputes, both within originalism and between originalists and nonoriginalists.  From the conservative side some theorists who might be called "new originalists," have focused on restraint and constraint. John McGinnis and Michael Rappaport have argued that constitutional construction is unnecessary. Their argument reflects their distinctive version of originalism, “Original Methods Originalism.” They argue that by using the original methods of constitutional interpretation, judges can eliminate or almost eliminate ambiguity and vagueness.

A different approach to the problem of constraint has been developed by Gary Lawson and Michael Paulsen. They each argue that the problem of vagueness can be solved by a principle of judicial restraint. When the text is vague or ambiguous, judges should defer to the decisions made by elected officials. So even if there is a “construction zone,” there is no need for judicial discretion or morally informed decision making.

Again repeating what I've said before, I don't think the Lawson/Paulsen position here is properly understood as deference to the decisions of elected officials.  Rather, I think it is a matter of authority.  Courts have authority to override the decisions of elected officials only when the Constitution provides that authority.  When the Constitution is indeterminate, that authority is lacking.  Judges don't "defer" to anyone; they simply fail to find the authority to act. (Of course, it is a matter of dispute how indeterminate the Constitution must be for judges to lack authority to act.)

This is also a key point:

Another line of progressive criticism suggests that the New Originalism no longer provides sufficient constraint and restraint to serve as a real rival for Living Constitutionalism. Thomas Colby has made a version of this argument, and a similar argument has been advanced by Peter Smith. Together, Colby and Smith have also argued that new versions of originalism are so varied in content that it no longer makes sense to think of originalism as a coherent constitutional theory.

I think this criticism has some force against some versions of New Originalism (as Professor Solum defines it) but less against others.