Originalism Theory
The Letter and the Spirit: A Unified Theory of Originalism
Randy E. Barnett
Georgetown University Law Center
Evan D. Bernick
Georgetown University Law Center
Abstract: The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism. Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text). Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences.
The Gravitational Force of Originalism
Randy E. Barnett
Georgetown University Law Center
Abstract: In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In part II, I then discusses how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision.
Last revised: 7 Dec 2013
No Arbitrary Power: An Originalist Theory of the Due Process of Law
Randy E. Barnett
Georgetown University Law Center
Evan D. Bernick
Georgetown University Law Center
Abstract: “Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.
Last revised: 3 Aug 2018
Originalist Theory and Precedent: A Public Meaning Approach
Lawrence B. Solum
University of Virginia School of Law
Abstract: This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. The Article advances two central claims. First, precedent has a role to play in the transition to originalism. Because an originalist “big bang” is not feasible, originalists should embrace a transitional role for precedent on the road from the status quo to a constitutional jurisprudence that is fully consistent with the original meaning of the constitutional text. Second, precedent has a role to play within originalist jurisprudence with respect to questions where the original meaning is not clear: in such cases, an originalist jurisprudence could incorporate a principle that the settled meaning of the clause should prevail until there is substantial consensus that another meaning is correct. In addition, the article discusses the question whether the doctrine of stare decisis is consistent with the original public meaning of the constitutional text. Rather than offering conclusions, the point of this discussion is to outline methods and principals that should guide the originalist inquiry.
Last revised: 4 Apr 2019
Lawrence B. Solum
University of Virginia School of Law
Abstract: This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, “What would James Madison do?” Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks to legitimize conservative outcomes by invoking the prestige of the Founding Fathers. But in fact, the original public meaning of the constitutional text is a mixed bag–leading to many results that would be welcome by conservatives, but others that might be appealing to liberals or progressives. Even sophisticated lawyers and judges may believe that the justifications for originalism can only appeal to conservatives, but, in fact, the case for originalism, rooted in the rule of law and the value of legitimacy, can appeal to Americans with a wide range of political beliefs. This Article discusses three ways in which originalism is surprising: Surprising theory is the topic of Part I. Surprising implications are explored in Part II. Surprising justifications are the subject of Part III. The Conclusion reflects on the implications of surprising originalism.
Last revised: 25 Jun 2018
Christina Mulligan
Brooklyn Law School
Abstract: Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.
Last revised: 2 May 2018
Jeffrey Pojanowski
Notre Dame Law School
Kevin C. Walsh
University of Richmond School of Law
Abstract: If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, originalism is not the law and perhaps should be abandoned in favor of what is. The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought, which is also the framers’ tradition, supplies a solid jurisprudential foundation for constitutional originalism in our law today.
William Baude
University of Chicago – Law School
Abstract: This Essay provides a new framework for criticizing originalism or its alternatives — the framework of positive law. Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what is? Answering this question can reorient the debates and allow both sides to move forward. If we apply this positivist framework, there is a surprisingly strong case that our current constitutional law is originalism. First, I argue that originalism can and should be understood inclusively. That is, it permits doctrine like precedent if those doctrines can be justified on originalist grounds. Second, I argue that our current constitutional practices demonstrate a commitment to inclusive originalism. In Supreme Court cases where originalism conflicts with other methods of interpretation, the Court picks originalism. By contrast, none of the Court’s putatively anti-originalist cases in fact repudiate originalist reasoning. These judicial practices are reinforced by a broader convention of treating the constitutional text as law and its origin as the framing. So while constitutional practice might seem, on the surface, to be a pluralism of competing theories, its deep structure is in fact a nuanced form of originalism. Third, I suggest that originalism’s positive legal status has important normative implications for today’s judges. Judges promise to follow the law, and their judicial authority is premised on the assumption that they do. So if an inclusive version of originalism is the law, judges ought not be the ones to change it. Courts ought to privilege our current legal conventions over academic theories that are anti-originalist and against narrower forms of originalism as well.
Last revised: 6 Jan 2016
Originalism as a Theory of Legal Change
Stephen E. Sachs
Duke University School of Law
Abstract: Originalism, best understood, is not a theory of interpretation but a theory of our law. Its central claim is that the Founders’ law remains good law for us today. And it ought to be defended, if at all, based not on normative goals or abstract philosophy, but on positive features of American legal practice and of our rules for legal change. A basic assumption of legal systems is that the law, whatever it is, stays the same until it’s lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today — unless something legally relevant happened along the way to change them. We expect assertions of constitutional change to provide this kind of historical pedigree; and a wide variety of approaches — “conservative” and “liberal,” from precedent to post-Founding practice — are defended as products of the Founders’ law. These ordinary practices show an implicit commitment to a deeply originalist premise: that our law today consists of their law, the Founders’ law, plus any lawful changes. What’s important about the Constitution, on this account, isn’t so much what its text said, but what its enactment did — what it contributed to American law at the Founding, as preserved to the present day. Rather than look to original intentions, original public meaning, and so on, we should look to the original law — the law added to our system by the text’s enactment, according to the legal rules governing interpretation at the time. This “original-law originalism” helps us to understand, and hopefully to resolve, longstanding constitutional debates: originalists and nonoriginalists ought to disagree about the sources of today’s law, while different schools of originalists ought to disagree about the law’s content in the past. The claim that we still take as our own the Founders’ law, as it’s been lawfully changed, is a claim about current society; it might be true or false. This Article merely argues that, if it is true, it’s the best reason to be an originalist — and, if it’s false, the best reason not to.
Last revised: 2 Jul 2015
Faithful Execution: Where Administrative Law Meets the Constitution
Evan D. Bernick
Georgetown University Law Center
Abstract: The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than constitutional text. In recent years, however, federal courts have been forced to confront important constitutional questions concerning the President’s exercise of administrative discretion under broadly worded federal statutes. Among those questions: (1) Does the Constitution impose any independent constraints on the administrative discretion that is available to the President under the text of federal statutes? (2) If so, are judges obliged to determine whether that discretion has been abused? and (3) How should judges make such determinations? This Article argues that the Take Care Clause of Article II, Section 3 constrains the President’s administrative discretion and that judges are obliged to determine whether that discretion has been “faithfully” exercised. It then constructs a faithful execution framework that judges can use to implement the “letter” — the text — and the “spirit” — the functions — of the Take Care Clause. To that end, it makes use of a theory of fiduciary government that informed the content and structure of the Take Care Clause and draws upon well-established administrative law doctrines. It uses the faithful execution framework to evaluate President Barack Obama’s 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and President Donald Trump’s 2017 travel bans. By so doing, this Article shows that central components of modern administrative law rest upon sound constitutional foundations. It also provides judges with constitutionally inspired tools that can be used to promote presidential accountability, discipline presidential discretion, secure the rule of law, and thwart presidential opportunism.
Posted: 21 Nov 2019
Lawrence B. Solum
University of Virginia School of Law
Abstract: This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology. Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. The Essay concludes with a short reflection on the future of originalist methodology.
Last revised: 19 May 2017
Lawrence B. Solum
University of Virginia School of Law
Abstract: Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis. The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and ratified: subsequent changes in linguistic practice cannot change the semantic content of an utterance. The clause meaning thesis claims that the semantic content is given by the conventional semantic meaning (or original public meaning) of the text with four modifications. The first modification is provided by the publicly available context of constitutional utterance: words and phrases that might be ambiguous in isolation can become clear in light of those circumstances of framing and ratification that could be expected to known to interpreters of the Constitution across time. The second modification is provided by the idea of the division of linguistic labor: some constitutional provisions, such as the natural born citizen clause may be terms of art, the meaning of which are fixed by the usages of experts. The third modification is provided by the idea of constitutional implicature: the constitution may mean things it does not explicitly say. The fourth modification is provided by the idea of constitutional stipulations: the constitution brings into being new terms such as House of Representatives and the meaning of these terms is stipulated by the Constitution itself. The contribution thesis asserts that the semantic content of the Constitution contributes to the law: the most plausible version of the contribution thesis is modest, claiming that the semantic content of the Constitution provides rules of constitutional law, subject to various qualifications. Our constitutional practice provides strong evidence for the modest version of the contribution thesis. The fidelity thesis asserts that we have good reasons to affirm fidelity to constitutional law: virtuous citizens and officials are disposed to act in accord with the Constitution; right acting citizens and officials obey the constitution in normal circumstances; constitutional conformity produces good consequences. Our public political culture affirms the great value of the rule of law. We can summarize semantic originalism as a slogan: The original public meaning of the constitution is the law and for that reason it should be respected and obeyed. The slogan recapitulates each of the claims made by semantic originalism, but it is potentially misleading because it does not clearly distinguish between the semantic claims made by the fixation and clause meaning theses, the legal claim made by the contribution thesis, and the normative claim made by the fidelity thesis. Part I introduces the four theses. Part II is entitled An Opinionated History of Constitutional Originalism, and it provides the context for all that follows. Part III is entitled Semantic Originalism: A Theory of Constitutional Meaning, and it lays out the case for original public meaning as the best nonnormative theory of constitutional content. Part IV is entitled The Normative Implications of Semantic Originalism, and it articulates a variety of normative arguments for originalism. Part V is entitled Conclusion: Semantic Originalism and Living Constitutionalism, and it explores the broad implications of semantic originalism for living constitutionalism and the future of constitutional theory.
Last revised: 25 Nov 2008