The view (most prominently advocated by Justice Scalia) that original meaning entails the constitutionality of original practices has strong intuitive appeal and has been broadly assumed by originalists and nonoriginalists alike. But the position is mistaken. We suggest that a failure to distinguish between two different notions of meaning accounts for the position's wide currency. According to the first notion, the meaning of a term is roughly what a dictionary definition attempts to convey--the semantic or (...) linguistic understanding necessary to use the term, as opposed to nonlinguistic facts about the objects or activities to which the term applies. In contrast, according to the second, looser notion, the meaning of a term incorporates the objects or activities to which the term is applied. The first notion lies behind originalism's theoretical force; it is untenable that the meaning of the Constitution in the first sense could evolve. In sharp contrast, it is not only tenable but inevitable that changes occur over time in the class of things to which a constitutional provision is applied. Once recognized, the distinction undermines the seemingly natural move from the necessity of interpreting the Constitution in accordance with how it was originally understood to the necessity of upholding practices originally understood to be constitutional. By taking the distinction on board and rejecting the assumption, originalism can readily deflect the challenges based on unacceptable original practices; as a consequence, however, it will not be tenable for originalism, in any case challenging an original practice, simply to rule out the possibility of the practice's invalidity. (shrink)

I. CONSTITUTIONAL ORIGINALISM By “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.

Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. The distinction depends largely on what a constitution is. A constitution, like any other law, necessarily has a meaning, which pre-exists judicial interpretation: it is not a set of meaningless marks on paper. Any plausible constitutional theory must offer an account of the nature of that meaning. In doing so, it must address two main questions. The first is whether the meaning (...) of the constitution is given solely by its words, or also by additional evidence of underlying intentions, purposes or values. The second question is whether, in either case, its meaning is determined by the original meanings, intentions, purposes or values of the founding generation, or by contemporary meanings, intentions, purposes or values. This question divides so-called 'originalists' from 'non-originalists'. This article discusses all these alternatives, and the main arguments for and against them. It is subtitled 'Originalism' because it defends a moderate version of that position; however, it is argued that this is equivalent to a moderate version of non-originalism. (shrink)

Much ink has already been spilled on the relationship of constitutional originalism to precedent. The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil (...) Amar comes to mind. And there are many other contributions to the debate. Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case. Here is the roadmap. Part I provides a brief introduction to contemporary originalism. 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. (shrink)

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. (shrink)

As its title suggests, this is a book about constitutional interpretation. More specifically it is an articulation and defense of that particular method of constitutional interpretation, known as originalism, which looks to the original intent of the constitution’s framers as a benchmark against which interpretation is to be made. Professor Whittington believes “that originalism is the method most consistent with the judicial effort to interpret the written constitutional text and that an originalist jurisprudence facilitates the realization of a political (...) system grounded on popular sovereignty”. I think it is fair to say that in the current legal, political, and philosophical climate, originalist theories are pretty much on the defensive, which makes Whittington’s book all the more timely and valuable. (shrink)

Benhabib recasts the Derridean idea of `iteration' in democratic terms. While adhering to the original idea that both the fundamental terms of political consociation and the identity of the people itself is `radically' open, Benhabib argues that deliberative norms do and should frame the process of reiteration. For the deliberative democrat, the democratic constitution is not a would-be barrier to iterability (which we are told cannot be contained anyway); it is rather a communicative or discursive space in which the (...) hitherto suppressed or not yet present voice of other people finds its way and expands the terms of meaning giving and hence reason giving. The democratic constitution enables iteration; it is one side of a dialectic that relies upon, balances and, in some sense, makes the most of people power. Immigrants, in the final analysis, are the latest group to proclaim their presence in the sphere of constitutional interpretation, and thereby recalibrate the interpretive frame. And when they make their presence known in this way they have truly become a part of the `people'. When, however, they make their presence known in ways that undermine constitutional self-understanding, instead of engaging it, they are `not us'. Benhabib is hesitant to add this last bit, as she is hesitant to admit how much the constitutional identity of a people `rift with otherness' is reliant upon the historical referent and the generative/steering power of the right sort of constitutional court. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the constitution (...) is its original meaning. That is to say: the meaning is what it is, not what it should be. Accordingly, there is no sense in which the communicated content of the constitution is determined by reference to moral desiderata; linguistic desiderata do all the work. In this article, I beg to differ. In advancing their arguments for linguistic originalism, both authors rely upon the notion of successful communications conditions. In doing so they implicitly open up the door for moral desiderata to play a role in determining the original communicated content. This undercuts their claim and changes considerably the dialectical role of linguistic originalism in the debate over constitutional interpretation. (shrink)

I argue that the dispute between two leading theories of interpretation of legal texts, textual originalism and textual evolutionism, depends on the false presupposition that changes in the way a word is used necessarily require a change in the word’s meaning. Semantic externalism goes a long way towards reconciling these views by showing how a word’s semantic properties can be stable over time, even through vicissitudes of usage. I argue that temporal externalism can account for even more semantic stability, (...) however. Temporal externalism is the theory that the content of an utterance at time t may be determined by developments in linguistic usage subsequent to t. If this semantic theory is correct, then the originalist and evolutionist positions effectively collapse. Originalism is correct in that the original meaning of the text is the meaning that is binding on jurists, but evolutionism is vindicated, as it is the current practices and standards that determine the meaning the text now has, and has always had. Objections to temporal externalism, and to its application to the interpretation of legal texts, are considered and addressed. (shrink)

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen” at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in the (...) new originalist theories that have been developed principally in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 , is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: the doctrine of progressive interpretation; the use of a purposive methodology in progressive interpretation; the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and the presence of other constraints on judicial interpretation. (shrink)

_Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation__ “Chemerinsky... offers a concise, point-by-point refutation of the theory [of originalism]. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.”—David Cole, _New York Review of Books__ Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars but is (...) now a well-accepted mode of constitutional interpretation. Three of the Supreme Court’s nine justices explicitly embrace the originalist approach, as do increasing numbers of judges in the lower courts. Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be inflexible and shows how it is often impossible to know what the “original intent” of any particular provision was. Perhaps worst of all, though its supporters tout it as a politically neutral and objective method, originalist interpretation tends to disappear when its results fail to conform to modern conservative ideology. (shrink)

In the study of American law, originalism is primarily a theory about the meaning of the Constitution-that its meaning can only change when its words change. Originalism also appears in biblical theology as a theory on the meaning of the Biblethat its meaning is that intended by the original authors. Originalism in Theology and Law: Comparing Perspectives on the Bible and the Constitution offers a study of originalism in both the Bible and the Constitution. While (...) there are significant connections between originalism as a theory of biblical interpretation and as Constitutional interpretation, there are also differences in the type of text as well as its purpose, function, origins, or authority, which may affect which nuanced version of originalism best fits a particular text, or the best method of interpreting it. (shrink)

First of all, I would like to thank to the Philosophy of Law Department for this encounter with Professor Solum. It is really a pleasure meeting you Professor, and having the possibility to discuss this profoundly interesting and courageaus text with my colegues and specially with its author. The adjetive I have just used is not simply politeness, I really think we are in front of a very interesting work not only because of its persuasive humorous rhetoric but mainly because (...) it is a text that interrogates its own tradition even if it is with the intention to oxygenate, give air to it. And from a critical position that is something always to be welcomed. Nevertheless what I want to argue in this brief words is that what it is surprising (for my humble point of view) is that originalism, even in this new textual linguistic outfit or clothing, doesnt still address the question of the concept of origin itself. A question and a signifier that has a long inscription not only in western philosophical and interpretative traditions (meaning Nietzsche, Freud, Philosophical Hermeneutics as Gadamer, Ricoeur or in Derrida s deconstruction and so on) but also in non western interpretative tradition such as the Talmudic, for example. In these lines of thought the origin is unreachable, either lost or doesnt exist at all as far as there is no absolute ground that soustain an unique pure original meaning. In short, it is an empty signifier, obviously in dispute. So at last what it is called “original public meaning” it is no more than the result of the force relations between discourses. In other terms, there is an internal intimate relationship between power, language and interpretation. As Bajtin puts it (a russian linguist from the early XX century): the sign is the arena of social struggle. Or as Roland Barthes use to write: power parasitizes the language itself. (shrink)

It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation (...) for rulings. In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions—variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation—appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy—are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent. In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism—not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation. (shrink)

“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. (shrink)

Abstract In Restoring the Lost Constitution, Randy Barnett defends the idea that judges should interpret the U.S. Constitution according to its original public meaning, for in his view the Constitution, rightly understood, satisfies the appropriate normative criterion for determining when a constitution is legitimate and should be followed. As it turns out, however, even if the Constitution did mean what Barnett says it does, it would not meet his criterion of legitimacy, and therefore should not be followed. Moreover, (...) Barnett is just as guilty of reading certain clauses out of the Constitution as are his critics. Given the lack of a persuasive reason to follow the original Constitution consistently, judges must turn to sources of authority other than the Constitution in deciding constitutional cases. (shrink)

Two distinct and perhaps mutually exclusive understandings of utilitarianism have emerged in the ethics literature. Utilitarianism is typically regarded as an approach to determine ethicality by focusing on whether or not actions produce the greater good, but has also been conceptualized as a set of traits to which individuals might be predisposed. This paper is designed to clarify the meaning and implications of such utilitarian traits as “results-oriented,” “innovative,” and “a winner.” Although the Janus-headed model of ethical theory from (...) which these traits emerged had been acknowledged by its developer as possibly misrepresenting typical views of utilitarianism, much research using these traits appears to have been conducted without clear recognition of this. If the conceptual foundation underpinning hypothesis development is disconnected from the measure used to test them, then little support for relevant predictions should emerge. A review of the literature which featured utilitarian traits generally confirmed this. This paper also explored the origins and emergence of these traits and suggested that existing evidence that these measure utilitarian ethical predispositions is not especially persuasive. Understanding what utilitarian traits do not assess is critical in order for knowledge about this potentially useful measure to advance. (shrink)

Two distinct and perhaps mutually exclusive understandings of utilitarianism have emerged in the ethics literature. Utilitarianism is typically regarded as an approach to determine ethicality by focusing on whether or not actions produce the greater good, but has also been conceptualized as a set of traits to which individuals might be predisposed. This paper is designed to clarify the meaning and implications of such utilitarian traits as “results-oriented,” “innovative,” and “a winner.” Although the Janus-headed model of ethical theory from (...) which these traits emerged had been acknowledged by its developer as possibly misrepresenting typical views of utilitarianism, much research using these traits appears to have been conducted without clear recognition of this. If the conceptual foundation underpinning hypothesis development is disconnected from the measure used to test them, then little support for relevant predictions should emerge. A review of the literature which featured utilitarian traits generally confirmed this. This paper also explored the origins and emergence of these traits and suggested that existing evidence that these measure utilitarian ethical predispositions is not especially persuasive. Understanding what utilitarian traits do not assess is critical in order for knowledge about this potentially useful measure to advance. (shrink)

This essay assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation, as elaborated in James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalism (2015), by evaluating the recent, momentous constitutional controversy in the United Sates of America over access by same-sex couples to civil marriage. Justice Kennedy’s landmark majority opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing evolving (...) understandings of constitutional guarantees of equality, the “promise of liberty” and the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry —and marriage— and stressed the role “insight” and generational progress. Evolving understanding played a similar role in Goodridge v. Department of Public Health (2013), which provided a template for Kennedy’s rejection of a narrow originalism focused only on historical practices or original intent. Such moral readings of the Constitution have played a significant role in making the Fourteenth Amendment less of (in Justice Ginsburg’s words) an “empty cupboard” for gay men and lesbians, just as they have played a role in making it less empty in the context of sex equality. This essay demonstrates how the contrasting approaches to interpretation in the majority and dissenting opinions in DeBoer v. Snyder (reversed by Obergefell) previewed the interpretive battle between the Obergefell majority and dissents, but with the sides reversed. It then observes that, while some legal scholars offered, in amicus briefs filed in Obergefell, originalist arguments for same-sex marriage, such arguments persuaded neither other originalist scholars nor the Obergefell dissenters. (shrink)

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several (...) competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves. (shrink)

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several (...) competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves. (shrink)

This paper explores how the notion of distance works in the practice of interpretation by studying the philosophical underpinnings of the originalism debate in American constitutionalism. Focusing on some of its most important spokespeople, the paper shows that they start from the historicist presupposition that distance can in principle be overcome by a reconstruction of the original intentions of the framers of the Constitution. With the help of Hans-Georg Gadamer, who explicitly based his philosophical hermeneutics on the notion of (...) distance, this presupposition will be criticized. The paper concludes that the originalist and hermeneuticist positions do not mutually exclude each other, but can be synthesized if they are seen as different questions about the same text. The meaning of the Constitution is therefore not given but is dependent on the direction of the questions asked by the interpreter. From this question-dependency of meaning it follows that interpretation follows the law of acoustics: "Angle of incidence equates angle of reflection.". (shrink)

Brown famously held that in the field of public education, segregation has no place. But segregation was undefined. Was segregation constituted by mere racial classification, by the fact that the state had divided children into racial groups? Or did Brown condemn a caste system whose effect was to stigmatize black children. In Parents Involved v. Seattle Justice Roberts says segregation is about children not black children. This colorblind approach represents both a rewriting and appropriation of Brown in the service of (...) formalism. The Roberts court writes not only a new version of Brown but a new historical narrative about the meaning of segregation. The theme of this new story is formal equality - equality of opportunity only - as a universal ideal. This new story is woven entirely out of the language of Brown detached from all historical context. Conservatives have long canonized Brown. It has been a kind of second constitution for the second reconstruction. But how does this new story compare to the original understanding ?: Was this the evil that Brown denounced? By framing the issue in this way the paper seeks to make an end run around an impasse in our social and legal debate. Many progressive scholars have challenged the conservative conception of formal equality by suggesting alternative ways of thinking about it: anti-subordination models, a heightened call that equality should take issues of racial caste into account. But this external critique has stalled, perhaps in part because of the slippery indeterminacy of normative ideals. Segregation is far more determinate; it is something that has been concretized not only by the lived experience of black people, but by an earlier realist tradition on the part of the Warren court which saw it as it was. Retelling the two parts of this forgotten history we expose the disconnect between the Supreme Court's universalism and the actual meaning of segregation in context. Also, by focusing on the original understanding we seek a kind of internal critique showing how the politics of historical revision does not withstand the conservatives own interpretive approach. (shrink)

From James Legge’s first attempt to translate the Yijing in the English speaking world in 1854, to the latest translation, The Original Meaning of the Yijing, by Joseph A. Adler in 2019, the process of translating the Yijing into English has been continuing for nearly 170 years, and there are countless translations by numerous translators. Historically, these English translations of the Yijing reveal five trends: first, the translations rely on the authoritative, traditional commentaries on the Yijing; secondly, some (...) translations rely on the personal help and interpretations of Yijing scholars in China; thirdly, some translations depend on recently unearthed documents of the Yijing; fourthly, Yili and Xiangshu are more or less involved in these translations, although the focus of each translation is not always the same; fifthly, most translations strive for the “original” meaning of the Yijing, especially with the unearthed documents of the Yijing since the 1970s. It could be safely concluded that the ultimate goal of the English translators of the Yijing is to provide English readers with the Yijing that is closest to the original/authentic meaning so that people in theWest can truly understand the essence of Chinese philosophy represented by the Yijing. (shrink)

Derrida's Husserl thinks of meaning as self-presence and of self-presence as transparent and complete presence of meaning to the mind. Expression and thought are but particular modes or media of the more englobing relation of a self-acquainted life. Reflection is the highest form and telos of the other forms of presence. In contrast, the — by no means complete — Husserl who has begun to appear in my interpretation does not unconditionally subscribe to the value of presence. Not (...) only is an important part of intentional life directed towards objects which it does not possess in their plenitude — hence its emptiness —, this part of intentional life is also blind towards itself. Reflection tries to fill this gap by grasping what is not present to a life immersed in its world. But a retreat from life is the price of presence, a presence, in addition, whose power is essentially limited by the fluidity of its material and by the limits of its bearers. And yet Husserl maintains, passionately maintains, the claim and value of reflection and of a scientific attitude which Derrida rejects with equal passion. May they not have a positive function in a frame which is no longer that of presence metaphysics? As deconstruction has evolved its philosophy of anti-presence, it has brushed away the reflexive potential of Phenomenology and chosen to reject ‘its own origin”. (shrink)

In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous, seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This paper examines its resilient appeal (with a particular focus on Scalia's Textualism).By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, (...) Dworkin's value theory, and Minimalism), the paper demonstrates that the heart of Originalism's appeal rests in its promise of objectivity. The paper also establishes, however, that Originalism suffers from a misguided conception of what objectivity is. All camps in this debate, in fact, suffer from serious misunderstandings of the nature of objectivity. (shrink)

In this article I endeavour to clarify the meaning of ‘responsibility’, which in the last decades has become a cornerstone of the ethical and political debate. To this end, I carry out an etymological enquiry into this notion with respect to antique and modern European languages. The thesis I argue is that language evidences a unique capacity to cherish, nurture, and foresee with a touch of wisdom an inexhaustible repertoire of existential meanings, which take the stage in human endeavours. (...) As a result, this enquiry helps to understand the original relational and future-oriented significance of ‘responsibility’. Additionally, the analysis steers clear of incorrect or incomplete interpretations, as well as of those willing to deal with the complex and multifaced meaning of ‘responsibility’ in a purely logical-analytical way, which results in moving to the background, if not disregarding altogether, its historical and linguistic stratifications, which are in fact relevant to the full comprehension of this notion. (shrink)

I argue here that the existence of hermeneutical injustice as a pervasive feature of our collective linguistic and conceptual resources undermines the originalist task at two levels: one procedural, one substantive. First, large portions of society were (and continue to be) systematically excluded from the process of meaning creation when the Constitution and its Amendments were adopted, so originalism relies on enforcement of a meaning that was generated through an undemocratic process. Second, the original meaning of (...) some words in those texts may be substantively objectionable as a result because they fail to capture the relevant experiences of affected people at the time even if they accurately capture the conceptual understanding of reasonable people at the time, and this substantive failing may infect the text’s democratic legitimacy. To the extent that it can be overcome, overcoming this epistemic problem will require originalists to take seriously the insights of critical theory, understood in this Note as a normative inquiry into the historical context of the language and meaning of statutory text. Because originalists are already committed to a nominally descriptive inquiry into this context, and because this nominally descriptive inquiry masks the inherently normative aspects of the hermeneutical landscape, the switch to an explicitly normative inquiry may prove quite painless. (shrink)

When it comes to a question as notoriously unclear as “What is the meaning of life?” clarifying the question and its conceptual setting is a necessary step before attempting to answer the question. The analysis of the concept of “the meaning of life” is a twofold task; “the meaning” and “life” both need to be examined. In this paper, I primarily focus on “the meaning”. I argue that, although there is much disagreement and confusion in the (...) literature about the meaning of “the meaning” as it is applied to life, there is one most plausible interpretation of this notion. In the end, even though I do not answer the question of the meaning of life, I propose an account of what a correct answer to the question is supposed to look like, based on my original function analysis of “the meaning.”. (shrink)

One of the central debates amongst U. S. constitutional theorists for more than a generation has been between (conservative) ‘originalists’ arguing that, in interpreting and applying the Constitution, judges are duty bound to adhere to the original understandings at the time of the Constitution’s adoption and (liberal/progressive) ‘living constitutionalists’ arguing rather that, when appropriate, judges should read the Constitution in light of contemporary needs and moral aspirations. While acknowledging the significance and legitimacy of the originalist call for fidelity to (...) history and newly incorporating elements of their arguments into his theory, Fleming, in Fidelity to Our Imperfect Constitution, re-affirms moral aspirationalism as the ultimate foundation of the interpretive project. I argue here, as against Fleming, that the opposition that he (and other American constitutional theorists) have drawn between originalism’s historicism and living constitutionalism’s moral aspirationalism is a false binary – the contingent product of a developmental succession of political battles between American conservatives and progressive/liberals over the course of the twentieth century. I argue here, contra Fleming, that in both theory and practice, in the U. S. at least, history and moral aspiration are and have always been inextricably intertwined —inseparable— and that, going forward, U. S. constitutional historians and theorists would do better by forthrightly acknowledging and accounting for this fact, and dynamic. (shrink)

Words have meanings, often more than one. Many words also have evocative power and communicative reach. It is important to look beyond the legal route in making human rights more effective, and to endorse but proceed beyond human rights being seen as motivation only for legislation (the particular connection on which Herbert Hart commented). Within the legal route itself there is the important issue of interpretation of law that can stretch beyond the domain of fresh legislation. In assessing the ‘originalist’ (...) disciplines of legal interpretation, the article discusses the distinction between interpreting the original text in terms of changing linguistic conventions (on which some commentators have focused) and taking note of public reasoning today in the light of the original ‘constitutional motivation’. (shrink)

INTRODUCTION Phenomenology as transcendental phenomenology is centered in a description of meaning interpreted in relationship to acts of consciousness. ...

Interpretive Archaeologies provides a forum for debate between varied approaches to studying the past. It reflects the profound shift in the direction of archaeological study in the last fifteen years. The book argues that archaeologists must understand their own subjective approaches to the material they study as well as recognize how past researchers imposed their value systems on the evidence they presented. The book's authors, drawn from Europe, North America, Asia and Australasia, represent many different strands of archaeology. They address (...) the philosophical issues involved in interpretation and the origins of meaning in the evolution and emergence of "mind" in early hominids. They discuss the ways in which material culture is understood and presented in museums, and how the nature of history is itself in flux. (shrink)

The meaning of an utterance is often enriched by the pragmatic context in which it is uttered. This is because in ordinary conversations we routinely and uncontroversially compress what we say, safe in the knowledge that those interpreting us will ‘add in’ the content we intend to communicate. Does the same thing hold true in the case of legal utterances like ‘This constitution protects the personal rights of the citizen’ or ‘the parliament shall have the power to lay and (...) collect taxes’? This article addresses this question from the perspective of the constitutional originalist—the person who holds that the meaning of a constitutional text is fixed at some historical moment. In doing so, it advances four theses. First, it argues that every originalist theory is committed to some degree of pragmatic enrichment, the debate is about how much. Second, that in determining which content gets ‘added in’, originalists typically hold to a common knowledge standard for enrichment, protestations... (shrink)

The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to (...) the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish. (shrink)

Originalism as Faith presents a comprehensive history of the originalism debates. It shows how the doctrine is rarely used by the Supreme Court, but is employed by academics, pundits and judges to maintain the mistaken faith that the Court decides cases under the law instead of the Justices' personal values. Tracing the development of the doctrine from the founding to present day, Eric J. Segall shows how originalism is used by judges as a pretext for reaching politically desirable results. The (...) book also presents an accurate description and evaluation of the late Justice Scalia's jurisprudence and shows how he failed to practice the originalism method that he preached. This illuminating work will be of interest to lawyers, law students, undergraduates studying the Court, law professors and anyone else interested in an honest discussion and evaluation of originalism as a theory of constitutional interpretation, a political weapon, and an article of faith. (shrink)

Concept originalism, recently introduced and defended by Sainsbury and Tye, Tye, and Sainsbury, holds that “atomic concepts are to be individuated by their historical origins, as opposed to their semantic or epistemic properties”. The view is immune to Gareth Evans’s “Madagascar” objection to the Causal Theory of Reference since it allows a concept to change its reference over time without losing its identity. The possibility of reference-shift, however, raises the problem of misleading belief reports. S&T try to tackle the problem (...) by strengthening the sufficient condition for a truthful belief report. We will argue that, first, their solution fails, second, and more importantly, their diagnosis of the root of the problem is misguided, third, two initially appealing ways out of the problem fail, and fourth, the prospect of finding a solution to the problem within CO is dim. The view opens the Pandora’s box of reference-shift, in a wide range of cases, without providing the necessary semantic means to take care of them. (shrink)

The article describes and attempts to resolve a problem that arises for interpreters, translators, teachers, linguists, literary critics, and lawyers. Professional interpreters, for example, see themselves as the impartial transmitters of messages. Their dilemma notably arises in legal contexts when judges and prosecutors use language that is technical and belongs to a political system whose traditions are unfamiliar to defendants. In an effort to explain what such concepts as 'habeas corpus' and 'taking the fifth amendment' mean to Spanish-speaking monoglots, for (...) example, interpreters may become independent voices sending a nuanced version of the original message to its recipients. In such cases, and for other reasons, they may breach the principle of impartiality. The dilemma arises through a seeming incompatibility between two principles essential to impartial interpretation: the need neutrally to transmit a message and the need to communicate the content of a message in such a way as to make it comprehensible to an alien auditor. The author argues that these principles are not necessarily inconsistent. Thus whether an interpreter has deviated from the ideal of impartiality can only be decided on a case-by-case basis. (shrink)

Analyzing the constitutionality of a law is a process of constitutional interpretation which does not limit itself to comparing two texts in order to see whether they are concordant or not. The nature of constitutional interpretation is the subject of this article, a subject that is dealt with from the perspective of the dispute between originalism and non-originalism (interpretivism) prevalent within the contemporary philosophy of law, especially the American one. The article offers a synthetic view on some of the most (...) controversial issues pertaining to the theory and methodology of contemporary constitutional interpretation, such as: whether the interpretation of the Constitution is guided by the founders’intentions or by the text’s own words; whether the meaning of the Constitution is determined by the intentions, aims or values of the founders’ generation or by those of the contemporary generation? What are the grounds that justify the authority of the constitutional text, in other words, does this authority derive from its constraining capacityorfromitsabilitytobestowdemocraticlegitimacy?Constitutional interpretation must concentrate on the text or on the interpreter? Do the judges discover or build the constitutional meaning? In other words, is it the past or the present that guides the interpretation? Is the original interpretation the legitimate one or are legitimate the later interpretations of the constitutional text? (shrink)

For ages, natural disasters, war and disease have been part of life, sharing themes of not only adversity, fear and death, but also hope. The year 2020 brought a new threat in the form of coronavirus disease 2019, which challenged what humankind understood of all they knew and believed. The significant difference today is the role of the media in sharing news and opinions on this disease that threatens not only lives, but also spiritual well-being. In this study, we focus (...) on people’s religious views on the origin and meaning of this invisible threat to establish how this pandemic impacts on people’s belief systems. The 20th century was marked by a shift whereby actions and events are intellectualised to rationalise cause and effect, and the philosophical theodicies are regarded to limit our critical reasoning. This study, however, shows that COVID-19 reactivates this debate in that it surpasses logic and rational thinking. Data are collected by means of comments, discussions and opinions shared on numerous social media platforms. During times of adversity, the same rhetorical ‘who’ and ‘why’ questions are asked and in this regard, theodicy as a philosophical framework informs this study. Applying a narrative inquiry, data are interpreted and three themes are identified, namely COVID-19 is an act God, COVID-19 has nothing to do with God and God remains in control amidst a devastating pandemic. The sample for this study is random and the medium used allows for representativity in terms of age group, gender, race, religious affiliation of South Africa, but not limited to this country.Contribution: This article provides insight into renewed debates on religious views on pandemics and suffering in the context of COVID-19. It contributes to an understanding of different perceptions on the origin of this disease, how people make sense and find meaning in being part of a global discourse. (shrink)

While it is uncontroversial that the slave revolt in morality consists in a denial of the nobles as objects of value, Nietzsche’s account in the Genealogy’s first essay invites ambiguities concerning its origin, ressentiment’s relationship to value creation, and its meaning. In this paper, I address these ambiguities by analyzing the morality of good and evil as an historical artifact of Judeo-Christian tradition, and I argue for a two-stage, non-strategic interpretation of the slave revolt, according to which Judaism and (...) Christianity each made essential and different contributions. The inversion of values began with the Jewish prophets, who claimed the poor were holy and ‘good’ and the rich ‘evil’, and it was sustained throughout the Second Temple period by the Jewish priests in relation to a ‘priestly-noble’ conception of the virtuous person as holy and pure. Christ, through his espousal of egalitarianism, negated the pathos of distance essential to noble values, thus beginning the second phase of the slave revolt where goodness became associated with a distinctly slavish conception of virtue. (shrink)

Interactionism holds that explanatory and interpretive projects are mutually enriching. If so, then the evolutionary and cognitive science of religions’ explanatory theories should aid interpretive projects concerning religious meaning. Although interpretive accounts typically focus on the local and the particular, interpreters over the past century have construed Freud and Marx as offering general interpretive theories. So, precedent for general interpretive theorizing exists. 4E cognitive science, which champions how cognition is embedded in natural and cultural settings, extended into external structures, (...) enacted via motor routines, and embodied via representations rooted in human bodily form, has encouraged interpretive researchers. Theories of embodied cognition especially have embraced a sweeping view of meaning that attends to the emotions’ role and to their evolutionary origins. That inspires a 6E cognitive science that attends to the emotional and evolved dimensions of cognition too and opens up the possibility of general interpretive theories of broadly Darwinian character. Evolved cognitive systems qualify as maturationally natural cognition, which exhibits a distinctive constellation of features. The by-product theory holds that religious representations’ engagement of maturationally natural cognition fosters religions’ success. Representations with some minimal violation of intuitive expectations concerning some ontological category grab attention, stick in memory, and preserve the many automatic inferences accompanying the category. The empirical evidence for this and other elaborations of the by-product view suggests that it discloses dynamics of evolved cognition and associated emotions that tend to guide the pursuit of religious meanings systematically toward well-worn grooves in the semantic landscape. (shrink)

Despite its relatively small number of advocates, the theory of constitutional interpretation known as “Originalism” continues to enjoy an out-sized influence in the United States. Originalists themselves like to say that “we are all Originalists now,” and claim that their theory has become the obvious, unstated position of all responsible lawyers, judges, and politicians. Indeed, they say, how could anyone deny the truth of Originalism, if all it means is that we as judges, lawyers, and citizens are bound to follow (...) the text of the Constitution as the supreme law of the land, rather than just make up the law to suit our present preferences? Nor are there, its advocates say, any substantial competing theories of .. (shrink)