Originalism: a Philosophical Investigation

Abstract

Originalism as a theory of constitutional interpretation has been a lively subject of scholarly and public debate in recent times, particularly in the United States. However, the debate been hampered by disagreement and lack of clarity over what originalism is. This arises from the fact that originalism is a family of views, with self-proclaimed originalists disagreeing among themselves. The common core of originalism is that constitutional meaning is fixed: the original meaning continues to govern for as long as the constitutional provision is in force. But originalists disagree over what fixes the constitutional meaning: is it, for instance, the intentions of the framers or ratifiers of the constitution, or the meaning the constitution would ordinarily have been understood to bear when it was adopted? In this paper I will assess the justification of originalism as a theory of constitutional interpretation. The question of how constitutions ought to be interpreted is a question of political philosophy, something that originalists have all too often failed to recognise. I will consider two major arguments for originalism. Firstly, that originalism constrains judges. Two reasons are given for why judges’ discretion needs to be constrained in constitutional interpretation. First, it prevents judges from disregarding the decisions of the people regarding what their constitution should say, which would be contrary to popular sovereignty. Second, it is necessary to respect rule of law values of certainly and predictability that allow people to plan their lives and guide their conduct according to the law. Secondly, that originalism is legally mandated and judges ought to adhere to the law in deciding cases. I will assess these arguments in turn. I conclude that they are unpersuasive and that originalism is not a sound theory of constitutional interpretation.