Legal Theory Lexicon on "New Originalism"Michael Ramsey

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

... The old originalism is associated with the idea that the constitution should be interpreted to conform to the original intentions of the framers—the group that drafted each provision. For the bulk of the constitutional text, drafting occurred in the Philadelphia Convention, but each of the amendments has its own drafting history. But in the 1980s and 1990s originalism began to change in significant ways, and in the late 1990s and early 2000s, scholars began to refer to “the New Originalism.”

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.

And from later on:

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; in the most recent iteration of their theory, they claim that the constitution is written "the language of the law" and that legal concepts are more precise and determinate than are public meanings.

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.

Finally, Randy Barnett and Evan Bernick have argued that cases in the construction zone should be resolved by implementing rules that conform to the original purpose or function of the relevant constitutional provision(s).  Their approach requires judges to act in good faith, discovering original purposes and not acting on their own beliefs about what the purpose of a given constitutional provision ought to be.

Progressive criticism of the New Originalism has focused on a different set of issues. Some progressive critics have argued against the notion that the public meaning of the constitutional text can do the work of resolving constitutional controversies. One version of this criticism emphasizes historical context. Because the original understanding of the text was embedded in particular historical circumstances, that understanding cannot be transported to modern circumstances.

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.