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Originalism’s constitution

By Grégoire C. N. Webber

Abstract

This essay seeks to explore originalism as something other than a theory of interpretation. This might strike one as odd. After all, if originalism is a theory of interpretation, how else might one seek to understand it? Yet, conceiving originalism as something other than a theory of interpretation may reveal insights that otherwise would remain beyond one’s immediate grasp. Recognising this potential, I reflect on how originalism can be understood, not as a theory of interpretation, but rather as a constitution. In short, the query explored is: What is an original constitution? What model of a constitution does originalism contemplate? Now, attempting to design an original constitution may suffer from the same contests facing any account of originalism. Different originalists make different commitments, and any attempt to select among them will be vulnerable to criticism. Despite differences between originalists, three commands and commitments can fairly be attributed to originalism without raising too much contest: the original constitution is written at the founding and changed only by the amendment procedure it sets out, is law insofar as it provides rule-like prescriptions, and occupies a delimited domain, leaving the rest to democratic activity. The model of an original constitution here elaborated seeks to provide a model of a fictional constitution that satisfies, perhaps to a fault, the key commitments and commands of originalism. It seeks to bring to light the commands and commitments originalism would have of us, and of constitutions

Topics: K Law (General)
Publisher: Cambridge University Press
Year: 2011
OAI identifier: oai:eprints.lse.ac.uk:38192
Provided by: LSE Research Online
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