Copyright (c) 2009 Constitutional Commentary
ARTICLE: ORIGINALISM'S MISPLACED FIDELITY: "ORIGINAL" MEANING IS NOT OBJECTIVE
26 Const. Commentary 1
Although Originalism has been systematically critiqued and repudiated by a number of scholars in law and philosophy, it has proven an impressively resilient doctrine. It is not hard to understand why. Its basic thesis - that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted it - can seem to embody the very essence of fair play, expressing as straightforward an obligation as the obligation to keep one's word or to abide by the rules of a game one has entered into. Regardless of what various alternative theories of proper interpretive method may propose, it is difficult to stray far from the pure, fair-minded appeal of the Originalist brand of respect for the rule of law. Don't we have to be faithful to what the lawmakers were doing? To what they took themselves to be doing? Surely it would be wrong to set that aside and declare: "different times, different rules," without formally changing those rules through the prescribed procedures. To claim to be following written laws while departing from what the writers meant by them would actually eviscerate those laws, "respecting" the law in name only. Originalism insists that the rule of law requires fidelity on the part of those who apply the law to those who make the law. "Unlike the democratic visionaries, the rights theorists, or the natural lawyers," Keith Whittington has observed, "originalists do not look past the Constitution to a larger and prior ...
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