Jud Campbell (Stanford Law School) has posted Originalism's Two Tracks (104 B.U. L. Rev. 1435 (2024)) on SSRN. Here is the abstract:
Originalists constantly invoke history. But they are divided over how to approach the past. Some originalists—let's call them "track one" originalists—view the past in a backward-looking way, using modern criteria to identify earlier constitutional content. Other originalists—let's call them "track two" originalists—try to understand the past on its own terms, using historical criteria to identify earlier constitutional content. Although underappreciated, this division has significant implications for originalist theory and practice. It bears, for instance, on whether originalists should resuscitate long-forgotten features of our constitutional past, such as the embrace of general fundamental rights that were grounded in natural or customary law rather than in constitutional text. By exposing foundational paradigm shifts in American constitutionalism, Jonathan Gienapp's pathbreaking book, Against Constitutional Originalism, underscores the importance of distinguishing between "track one" and "track two" originalism. And how originalists respond to Gienapp's challenge, this Essay argues, should largely depend on which of these two tracks they choose.
Highly recommended. Download it while it's hot.
Campbell rights observes that my work on originalist methodology has many characteristics of what he calls, "Track Two," but he also argues that my position is that original meaning "must be ascertained using modern criteria, which [Solum] draws from linguistic philosophy" and hence belongs on what he calls "Track One." This argument is based on a grave conceptual error. Historical linguistics and the philosophy of language do not employ "modern criteria" that are opposed to contextual understanding of history. Instead, linguistic science is based on the nature of communication by language. The way that language works is neither modern nor historical. The notion that the application of linguistic theory and the philosophy of language might somehow distorts original meaning is akin to thinking that the application of modern chemistry to the understanding of what caused an explosion in the eighteenth century would be less accurate than applying eighteenth century chemical science.
There is, however, an important respect in which contemporary originalist constitutional theory does employ something akin to "modern criteria." Our normative judgments about what should be done with the original meaning of the constitutional text are necessary presentist. In other words, we must decide today whether we ought to adopt what I call the "Constraint Principle." But investigation of that normative question involves a set of issues to which Campbell's "Track One" and "Track Two" are simply irrelevant. There is no Track One, when it comes to the application of normative constitutional theory to the present.
Read Campbell!
