Legal Theory Blog: Legal Theory Lexicon: The New Originalism

Introduction

Most law students will encounter “originalism” in their first course in constitutional law. Depending on the instructor, this encounter could be quite short or very extensive. Most law students will know that originalist constitutional theory is concerned with “original meaning,” but they may not know about the differences between versions of originalism that focus on “the original public meaning” versus “the original intentions of the framers,” much less “the original understandings of the ratifiers” or “the original methods of constitutional interpretation.” Most students are likely to encounter what is sometimes called “the Old Originalism”—the version of originalism that prevailed in the 1970s and early 1980s. The old originalism is associated with the idea that the constitution should be interpreted to conform to the original intentions of the framers—the group that drafted each provision. For the bulk of the constitutional text, drafting occurred in the Philadelphia Convention, but each of the amendments has its own drafting history. But in the 1980s and 1990s originalism began to change in significant ways, and in the late 1990s and early 2000s, scholars began to refer to “the New Originalism.”

This entry in the Legal Theory Lexicon focuses on what is called “the New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, “the New Originalism” refers to a cluster of originalist theories that embrace two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. As always, the Lexicon is aimed at law students, especially first-years, with an interest in legal theory.

What Is Originalism?

There is a separate entry in the Legal Theory Lexicon on Originalism. In brief, we can think of originalism as a family of constitutional theories that are organized around two core ideas:

Older versions of originalism focused on the original intentions of the framers. So old originalists believed that the meaning of the constitutional text was fixed by the framer’s intentions and that judges should decide cases in a manner that is consistent with or even fully determined by those intentions.

What is “the New Originalism”?

The phrase “New Originalism” was first used Evan Nadel in 1996, but the phrase was popularized by Randy Barnett and Keith Whittington a few years later. Of course, this phrase is just a name that theorists use, and it has been used in different ways. For our purposes, we can think of the New Originalism as a subfamily of originalist theories that accept the Fixation Thesis and the Constraint Principle and add the following two ideas:

The Public Meaning Thesis: The original meaning of the constitution is the public meaning that each provision had at the time it was framed and ratified.
The Interpretation-Construction Distinction: Constitutional practice consists of two distinct activities:
1. Constitutional Interpretation is the discovery of the linguistic meaning of the constitutional text.
2. Constitutional Construction is the determination of the legal effect given to the text, including (a) doctrines of constitutional law, and (b) decision of constitutional cases.

These two ideas have several implications, but one implication is especially important. The Old Originalism is associated with an antipathy to judicial discretion in constitutional interpretation and construction. One of the motives for the Old Originalism was the belief that the Warren Court had broken the tether between the constitutional text and constitutional law and that judges were now importing their own moral and political beliefs into constitutional doctrine. Ideally, originalist judging would be both constrained and restrained. Constrained, in that the original meaning would provide an objective basis for the resolution of all or almost all constitutional cases. Restrained, in that originalist judges would rarely use the power of judicial review to strike down legislation or executive action.

The ideas associated with the New Originalism did not fit the old idea of perfect constraint and restraint. First, public meaning seems less constraining than original intent. The public meaning of some provisions of the Constitution is vague (at least on the surface). Phrases like “freedom of speech” or “legislative power” may have a core of determinate meaning, but they also seem to have a penumbra—a set of borderline cases. New Originalists call this area of underdeterminacy, “the Construction Zone.” If there is a substantial construction zone, then the constitutional text cannot do all the work of deciding constitutional cases. Moreover, some of the theorists who are called “New Originalists” have theories of constitutional construction that permit normative considerations to enter into the decision of cases inside the construction zone: Randy Barnett and Jack Balkin are prominent examples.

Critics of the New Originalism

The New Originalism has been criticized by both conservatives and progressives. From the conservative side, criticism has tended to focus on restraint and constraint. John McGinnis and Michael Rappaport have argued that constitutional construction is unnecessary. Their argument reflects their distinctive version of originalism, “Original Methods Originalism.” They argue that by using the original methods of constitutional interpretation, judges can eliminate ambiguity and vagueness.

A different approach to the problem of constraint has been developed by Gary Lawson and Michael Paulsen. They each argue that the problem of vagueness can be solved by a principle of judicial restraint. When the text is vague or ambiguous, judges should defer to the decisions made by elected officials. So even if there is a “construction zone,” there is no need for judicial discretion or morally informed decision making.

Progressive criticism of the New Originalism has focused on a different set of issues. Some progressive critics have argued against the notion that the public meaning of the constitutional text can do the work of resolving constitutional controversies. One version of this criticism emphasizes historical context. Because the original understanding of the text was embedded in particular historical circumstances, that understanding cannot be transported to modern circumstances.

Another line of progressive criticism suggests that the New Originalism no longer provides sufficient constraint and restraint to serve as a real rival for Living Constitutionalism. Thomas Colby has made a version of this argument, and a similar argument has been advanced by Peter Smith. Together, Colby and Smith have also argued that new versions of originalism are so varied in content that it no longer makes sense to think of originalism as a coherent constitutional theory.

Conclusion

Like many Lexicon entries, this one is both too short and too long. Too short, because we have barely begun to scratch the surface of the New Originalism. Too long, because a good Lexicon entry should be short enough to read in just a few minutes. Nonetheless, I hope this exploration of the New Originalism has opened the door for further investigation.

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