When he first began his academic teaching career, one of Professor Lee Strang\u2019s (Toledo College of Law) first pieces of legal scholarship was an article on the original public meaning of the word \u201creligion\u201d in the First Amendment. But while legal scholarship on religion has not necessarily seen an uptick, originalism definitely has, and Professor Strang\u2019s forthcoming book: Originalism\u2019s Promise and Limits: The Law-As-Coordination Account of Originalism will have something to do with that. During Professor Strang\u2019s term as a Visiting Scholar for the Georgetown Center for the Constitution, he completed the book\u2019s initial draft.<\/p>\n
Now, that draft will become a published book that explores how to make sense of the Constitution\u2019s creation and ratification and its purpose, what Professor Strang calls the \u201cconstitutional communication model of originalism.\u201d The goal of the Constitution\u2019s framers and ratifiers, and the goal of government actors since the Founding, he says, is to \u201cunderstand what the Constitution\u2019s communications are, and the public meaning of the text is how we best access that communication.\u201d According to Strang, \u201cthe Framers\u2019 goal was to communicate their solutions to coordination problems to the Ratifiers, and the Ratifiers\u2019 goal was to understand the Framers\u2019 coordination solutions in the proposed Constitution that they authorized. Thus, originalism is the mechanism Americans then\u2014and today\u2014utilize to understand the Constitution\u2019s coordination solutions.\u201d<\/p>\n
Strang\u2019s conception of originalism links the main strands of originalism. He says that the three prominent versions of originalism (i.e. original intent, original methods, and original public meaning) are not necessarily distinct, given the background of the constitutional convention and state ratification debates between 1787 and 1791.<\/p>\n
\u201cIf you are one of the Framers at the Philadelphia Convention and you are drafting a constitution to overcome the Articles of Confederation\u2019s problems, and also want to get it ratified by conventions of Americans in the various states, then you know they won\u2019t have access to your subjective, originally intended meaning of the Constitution,\u201d Strang says. \u201cInstead, you rely on the publicly accessible meaning of the text, so you craft the words, the structure, and the grammar of the text so that your intended meaning is packaged into the public meaning which the Ratifiers (hopefully) adopt.\u201d For example, Strang cites the fact that the Framers at the Philadelphia Convention spent ample time working on things like grammar, punctuation, and word choice. Essentially, their meticulous efforts to draft the Constitution makes a lot of sense from an original public meaning perspective.<\/p>\n
Furthermore, Strang\u2019s novel case for originalism might surprise even originalism\u2019s critics because it dovetails with his normative justification for originalism. Professor Strang\u2019s law-as-coordination account of originalism supports what he regards as the best method of its interpretation. Strang argues that, if consistently followed, originalism will lead to the background conditions enabling Americans today to best pursue their own human flourishing. Of course, other prolific scholars developed compelling rationales for originalism. To name a few: Professor Barnett\u2019s argument for originalism is that it leads to the best protection of natural rights, and Professors McGinnis (Northwestern) and Rappaport (San Diego) have proposed a consequentialist argument that originalism is the best way to interpret the Constitution because it leads to the best consequences.<\/p>\n
Professor Strang says that if you look at the Constitution from a natural law perspective, then the reason for following it becomes clear: \u201cwe should follow originalism because it helps us understand the constitution\u2019s solution to coordination problems.\u201d Take the Articles of Confederation, for an example. Among the well-known failures of the Articles of Confederation was the lack of authorization to regulate interstate commerce, which led to some states erecting trade barriers which erupted into (sometimes violent) trade disputes. According to Strang, the Articles of Confederation failed to properly coordinate the American states in their relationships with each other. Such an example exemplifies Strang\u2019s argument, which is that the Constitution embodies the Framers\u2019 and Ratifiers\u2019 solution to coordination problems.<\/p>\n
So, after publishing his first legal article on the original meaning of \u201creligion,\u201d Professor Strang\u2019s upcoming book is entering the originalism debate in a big way by re-conceptualizing constitutional interpretation. And this has the potential to extend into current public policy and politics. \u201cFor us to be able to understand and follow those solutions, we need to follow the original meaning. If we follow it, it helps us coordinate activities, promoting the general welfare,\u201d Strang says.<\/p>\n","protected":false},"excerpt":{"rendered":"
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